HAYS COUNTY, Texas (KXAN) — Hays County will head back to court to try to prevent pipeline construction through the area after filing a notice of intent that they would be suing Kinder Morgan a second time. The notice was filed on Wednesday, putting Kinder Morgan, the United States Army Corps of Engineers (USACE), and the United States Fish and Wildlife Service (FWS) on notice.

A lawsuit focused on environmental protection

The notice claims the pipeline company did not obtain the necessary federal permits to work near endangered species like the golden-cheeked warbler and sensitive environmental features like the Edwards Aquifer. Hays County has joined the Travis Audobon Society and three private landowners on this suit in the latest effort to stop the construction of a 430-mile pipeline. The City of Kyle declined to comment on whether they’d join in suing Kinder Morgan for this particular lawsuit.

The filing of this notice came after Hays County Commissioners voted to join in on the suit. The actual lawsuit can be filed sixty days after this notice was sent out. The parties on the lawsuit hope that the parties involved can do the kind of environmental review they are calling for before that time runs out.

The new lawsuit is calling for a full, independent environmental impact study. According to Precinct 3 Commissioner Lon Shell, asking for an environmental review is nothing more than what is required of Hays County when planning and building its infrastructure.

Kinder Morgan explained that they are still on track to begin construction on the pipeline in October. They still need to obtain permits from USACE and FWS. Kinder Morgan said they are in an open dialogue with both those agencies and have allotted what they think will be enough time for those agencies to approve their permits.

Kinder Morgan maintains that they have followed the law for working with these federal agencies and routing their pipeline. However, this new lawsuit claims they are missing a step in permitting designed to limit environmental impact.

Permian Highway Pipeline_Overview Map from Kinder Morgan
Permian Highway Pipeline Overview Map from Kinder Morgan in May 2019.

A second look at the previous lawsuit?

Hays County leaders are voted Tuesday to join in the effort to appeal last month’s ruling in another lawsuit against Kinder Morgan and the Texas Railroad Commission. The city of Kyle is also appealing this suit which will be carried out in the Third Court of Appeals in Austin.

These parties have expressed concerns about the safety, environmental and economic repercussions of the Permian Highway Pipeline. They object to the way Kinder Morgan set the route for the pipeline before seeking public input. In particular, Hays County and the City of Kyle argue that the proposed pipeline will have a negative impact on local governments by disrupting existing and planned development.

Local government leaders note planned commercial sites and development which would be impacted by the pipeline, as well as the expected additional projects in the years to come. A release from the coalition opposing the pipeline noted Tuesday that Hays County is one of the fastest-growing counties in the country. The most recent Census Bureau numbers show that Hays County experienced 41.7% growth from 2010 to 2018, the second-largest percent change in the country.

Unlike the newer lawsuit, the previous suit was focused on eminent domain and gaining more regulation and oversight for the project. A judge dismissed that suit in late June. The judge said she had concerns about the lack of oversight companies like Kinder Morgan have to create pipelines but that she believes it is up to the Texas legislature to change how that oversight works.

“The City of Kyle remains firm in its assertion that greater transparency is needed in the pipeline routing process,” said Kyle Mayor Travis Mitchell in a recent press release. “While we respect Judge Livingston’s ruling, the Texas Constitution clearly calls for the Railroad Commission to establish rules and policies for how eminent domain is utilized by private, for-profit corporations to forcibly seize others’ property. No such process currently exists.”

Mitchell explained that the City of Kyle also passed a new ordinance recently which would require that the pipeline passing through their city be a certain depth.

“Those kinds of things are our way of making the project more difficult for Kinder Morgan while simultaneously protecting our residents,” Mitchell said, explaining that the city is opposing the pipeline “using practically any and all means.”

Allen Fore, Vice President of Public Affairs for Kinder Morgan, said of this lawsuit, “we are confident about the District Court’s decision, but at the same time we continue to work with regulators.”

Fore explained that Kinder Morgan continues to gather pipes in a spot near Blanco which are intended to make up the central Texas portion of the pipeline. Kinder Morgan is still in talks with the counties the pipeline is slated to pass through about whether they will need to make more adjustments.

Environmental protections and the pipeline

The pipeline is supposed to pass through the turf of several protected species, including the golden-cheeked warbler.

The warbler, which has been the subject of much debate since it was placed on the list in 1990, breeds exclusively in Central Texas. These birds need older growth forest and dense tree canopy in order to survive. Despite efforts to remove the bird from the endangered species list in the past few years, FWS and a February ruling by a federal judge in Austin have solidified the continued protection os these birds. According to numbers on the FWS website, around 27,000 warblers survive today, a decline of about 25% in 28 years.

The newest lawsuit against Kinder Morgan calls for an environmental impact study under the National Environmental Policy Act, NEPA. It notes that Kinder Morgan intends to use the Nationwide Permitting process instead, which the plaintiffs say would be “bypassing a crucial step that will speed up their timeline, increase their profits, and avoid public transparency. “

Allen Fore with Kinder Morgan disagrees.

“There are no shortcuts here, no interpretations,” Fore said. “We say, ‘here’s our project’, we say, ‘what do we need to do to get the appropriate permits?’ And it’s not open for arguments for us, we do what they tell us to do.”

Kinder Morgan submits a packet of information about where their pipeline will go to FWS and USACE, Fore said. That review is ongoing, he said, and Kinder Morgan keeps an open conversation with those agencies about how the review is going and whether they will need to make adjustments.

“We are following all applicable laws related to environmental issues, including those for endangered and threatened species,” Fore said.

As part of that process, Fore explained that Kinder Morgan first conducted a review of a potential pipeline route remotely, from a “desktop view,” looking through publically available information about the area. Then, Kinder Morgan contracted with SWCA to perform environmental analysis on the ground for that route.

Fore classified places where Kinder Morgan can build pipelines into three categories: cannot build, can build and can build *if. Kinder Morgan doesn’t build in locations where they know regulations will stop them from building altogether.

“If there was no way to mitigate for an impact, the regulators would say you can’t construct there,” Fore said.

During permitting, the federal agencies determine the conditions under which Kinder Morgan should proceed with the can build *if locations.

“If we run into an endangered species, we have to show specifically how we are going to avoid those impacts,” he said.

Throughout the concerns raised in this process about environmental reviews and pipeline routing, Kinder Morgan maintains that they are simply following the laws that already exist.

“We are following the law and if that’s enacted by regulators and legislators then we will follow the law,” Fore explained.

David P. Smith, an attorney for Hays County’s newest lawsuit against the pipeline doesn’t see it that way.

“Kinder Morgan seems intent on telling people almost dismissively, ‘we’re doing everything right,'” Smith said.

“The easy thing for Kinder Morgan to do would be to say, ‘oh this is a NIMBY thing, oh these are environmental wackos,'” Smith said. “But when you look at the landowners who are involved, they’re not anti-pipeline, they’re not anti-gas. But if you’re going to exercise a governmental function, if you’re going to do that, follow federal law and go get a permit for the damage you’re going to cause and do an environmental analysis that informs the public to the impact.”

Smith explained that Hays County has its own standards for regional conservation and has already performed environmental analysis on how to mitigate the environmental impact for some of their upcoming developments. He said running a pipeline underneath something like a planned roadway could throw all that local planning off.

Smith said the lawsuit claims that Kinder Morgan should be applying for a different type of permit from federal agencies, one that covers their impact for the entire pipeline.

“You can go to the DMV and talk to them about what it takes to get a drivers license, but unless and until you have that drivers license, unless or until you have that permit, you can’t drive,” Smith said. “What they want to say is ‘we are talking with the Fish and Wildlife Service’ but unless they have a permit they are not authorized.”