A federal district judge dismissed a lawsuit filed by the City of Austin and other parties asking the court to rescind permits issued to, and thus stop the operation of, Kinder Morgan Inc.’s $2.15 billion, 430-mile Permian Highway Pipeline (PHP).
Austin was joined in the lawsuit by Travis and Hays Counties, the city of San Marcos, the Barton Springs Edwards Aquifer Conservation District, and four individuals. The plaintiffs argued the pipeline’s operations could disturb the Edwards Aquifer, a major source of drinking water and recreation for central Texas, and harm endangered species.
Federal District Judge Robert Pitman, who serves on the U.S. District Court for the Western District of Texas, dismissed the case on the grounds of the plaintiffs failing to make their case.
Incidents During Construction
Plaintiffs cited two incidents during the pipeline’s construction as motivating them to file the lawsuit challenging PHP’s permits.
During an early phase of construction, Kinder Morgan spilled 36,000 gallons of drilling fluid into the Blanco River in Hays County, affecting several nearby water wells. After that incident, the company rerouted the pipeline around the river, adding two miles to its length, upon consultation with local officials, the U.S. Army Corps of Engineers, and the Texas Railroad Commission.
Also during construction, venting of compressed air used to run an internal inspection device through a completed portion of the pipeline resulted in high decibel levels, sparking complaints from residents nearby. The city of Kyle, which had been notified of the inspection, responded by issuing a notice of noncompliance with its noise regulations.
Questions of Jurisdiction, Timing
With construction completed, the pipeline began full commercial operation on January 1. Kinder Morgan Texas Pipeline LLC and pipeline owner Permian Highway Pipeline LLC filed a motion to dismiss as moot the challenges to the validity of the PHP permits.
The U.S. Fish and Wildlife Service and U.S. Department of the Interior filed a separate motion to dismiss in December 2020. The agencies argued the Western District of Texas lacked subject matter jurisdiction over claims they had violated the National Environmental Policy Act and the Administrative Procedure Act. They further argued the court was precluded from granting the requested relief and the challengers had not established a risk of future harm.
In response, plaintiffs argued the court still had jurisdiction to order an environmental impact review even though construction was complete. The plaintiffs also argued that, because their concerns about the pipeline did not end with its completion, the federal agencies’ responses should have also addressed its operation and maintenance.
Lynn E. Blais, a University of Texas Law School professor and counsel for the plaintiffs, cited a recent decision by the D.C. Circuit Court of Appeals vacating a U.S. Army Corps of Engineers easement for the Dakota Access Pipeline and ordering the Corps to prepare a more stringent environmental impact statement.
Defendants countered that despite the court’s ruling in that case, it had not stopped the flow of oil through the pipeline, which has been operating since 2017 while the environmental reviews are being carried out.
No Evidence of Damages
Pittman rejected the defendants’ contention his court lacked jurisdiction or the authority to grant plaintiffs relief, but he found the plaintiffs had failed to make their case.
Pittman ruled the pipeline does not pose an imminent risk of harm to the environment, to the Edwards Aquifer, or to the golden-cheeked warbler, the Austin blind salamander, or other aquatic species, as plaintiffs had claimed.
“Neither their complaint nor their response include any facts suggesting that the ongoing impacts on the golden-cheeked warbler will lead to its death or injury as required to constitute a take under the statute,” Pittman said in his decision.
‘War Against Natural Gas’
This lawsuit was about radical environmentalists trying to end the use of fossil fuels, not protecting species, says Robert Bradley Jr., founder and CEO of the Institute for Energy Research.
“Blocking pipelines and capacity upgrades are environmentalists’ means of forcing a transition to ‘clean’ energy sources,” Bradley said. “The opposition’s rhetoric shows the attempt to stop PHP from operating is just part of an ongoing war against natural gas.
“When opponents organized a ‘Stop the Permian Highway Pipeline Week of Action,’ including a car caravan, they issued a declaration stating, ‘Human rights violator and world-destroyer Kinder Morgan is over halfway through construction of the Permian Highway Pipeline, a massive, direct assault on all forms of life,’” Bradley said.
PHP’s Environmental Benefits
The PHP has the capacity to deliver 2.1 billion cubic feet of natural gas per day from the Waha field in Pecos County to terminals in Katy, Texas, with connections to the U.S. Gulf Coast and markets in Mexico.
The Energy Law Advisor reports natural gas operators have reduced natural gas flaring in Texas and New Mexico since PHP began operating.
Moving oil and gas through pipelines benefits the environment and our economy, says Jason Isaac, director of Life:Powered, a project of the Texas Public Policy Foundation.
“It is unfortunate so much time and money is wasted on pipeline lawsuits, especially since pipelines are proven to be by far the safest, most efficient, and most environmentally friendly way to transport energy to where it’s needed most,” Isaac said. “Pipelines are an essential component of the affordable and reliable energy we need to power our economy, our national security, and our way of life.”