AUSTIN (KXAN) — Travis County District Court Judge Lora J. Livingston has dismissed a lawsuit which now allows the construction of the Permian Highway Pipeline.
The pipeline is set to run through Hays County, property owners argued there should be more oversight and more community input.
The court explained that the judge informed the parties of her decision via a letter on Tuesday (the letter is linked at the end of this article). She took several weeks to decide after finishing hearing arguments in late May.
City of Kyle, Hays County and three landowners were suing the pipeline company, Kinder Morgan, as well as the Texas Railroad Commission. The plaintiffs attempted to argue that the Railroad Commission had not carried out the public oversight with Kinder Morgan required by the Texas Constitution
The judge’s decision grants summary judgment to Kinder Morgan, denies the plaintiff’s request for an injunction and dismisses the suit. She noted that the plaintiffs don’t argue that Kinder Morgan has not followed the law, instead they argue that the state laws and procedures for eminent domain for gas utilities are unconstitutional and that Kinder Morgan following those laws was wrong.
The judge recognized there’s a lot at stake here. She acknowledged the plaintiffs are “facing an unwanted invasion onto their property along with fears of explosions and other potentially dangerous conditions.” The defendants, she noted have a “$2 billion investment and the public’s much-needed increase in accessible natural gas from the Permian Basin.”
While the judge dismissed the lawsuit, she did express worry over something she also voiced worry over in the court hearings: the ability of gas utilities in Texas to make plans for pipelines and exercise eminent domain with little public oversight.
“The Court is concerned with a power that, when exercised by a government entity, must be done in the harsh light of public scrutiny of open meetings and public notice, but, when exercised by a private entity, may be determined without public notice by a select few driven primarily by their financial interests,” she said in her decision.
However, the judge said that was not her role to rule on and the question at hand is up to the Texas legislature to decide. The Texas legislature will not reconvene until 2021, at which time the pipeline is expected to be open. In the 2019 session, the Texas legislature did not take any action which would impact the oversight in pipeline creation, parties to this lawsuit explained.
The Permian Highway Pipeline would carry natural gas for more than 400 miles through a 42-inch-wide pipe from West Texas (Waha, TX) to Katy, and Kinder Morgan and others have been working for months to determine the exact route. It will cost an estimated $2 billion for the gas companies involved to carry out this project. This pipeline will be designed to move as much as 2.1 billion cubic feet per day of natural gas.
The companies involved expect the pipeline to be in service in late 2020 as long as all the regulatory approvals go well. They expect construction to begin in the fall of 2019. Kinder Morgan will build and operate the pipeline, although other gas utilities will be involved.
Kinder Morgan is happy with the ruling saying the court’s finding validates the eminent domain process. They added they will continue to work with stakeholders.
“The court’s finding validates the process established in Texas for the development of natural gas utility projects, as well as the steps we have taken to comply with that process,” said Tom Martin, president of Natural Gas Pipelines for KMI.
Kinder Morgan believes this project will generate significant amounts of money for communities and the Texas energy economy.
The coalition of property owners and government entities who had opposed the pipeline was dismayed by the decision. They said in a statement:
“We respect but disagree with Judge Livingston’s ruling. We continue to believe the Texas constitution does not allow for the delegation of this awesome power to a private company without oversight. This issue should be heard by an appellate court. We are weighing our options for an appeal and planning additional legal actions in other venues to challenge this severely problematic route.”
The judge in this case said in court that she believes it’s likely this case will ultimately be resolved in an appeals court.
Andrew Sansom, who manages land the pipeline is slated to pass through and was one of the plaintiffs listed on this lawsuit, heard the news on his drive home Tuesday evening.
“I was very disappointed in the decision, I think the judge probably underestimated her authority to rule against the Railroad Commission and Kidner Morgan, we believe she had that authority to do so,” Sansom said.
Sansom is a former director of Texas Parks and Wildlife and current manager of the Hershey Ranch conservation effort on land belonging to the Hershey family near Stonewall in Gillespie County. Sansom said he wants to see an appeal of this decision.
“These pipeline companies do not have to follow hardly any due process to condemn your land, so beyond environmental impact which will clearly be there, is the unconstitutional taking of private property by private company,” he said.
Kinder Morgan, on the other hand, stands behind the state’s eminent domain process, saying that it ensures that no single landowner can block “critical infrastructure.” The company maintains that they have evaluated the route to minimize potential impacts to landowners and the environment, but the opponents of the pipeline remain concerned about the environmental impacts of the pipeline and the lack of public discussion prior to the pipe’s route being set.
Hays County and the City of Kyle also expressed concern about development projects they’ve been working on for years which will have to be reevaluated because of where the pipeline will pass through. In court hearings for this case, both parties made it clear that the pipeline planning process was happening much faster than the process it took the local governments to make these developments a reality.
“It appears that project planning has been operating on parallel tracks without crossover as far as information sharing,” Judge Livingston announced to the courtroom at a hearing back in May. She pointed out that SWCA, who had been contracted by Kinder Morgan to perform environmental analysis on the pipeline, had been seeking out permits and planning for the property underground as leaders in Kyle and Hays County had been doing the same for the land above ground — both without any knowledge of the other.
What happens next?
Kinder Morgan explained that they are preparing to begin pipeline construction in the fall, with hopes of getting construction started in October. In the meantime, they are getting employees ready to work on the pipeline and gathering the pipes that they will use at a site near Blanco.
Allen Fore, Vice President of Kinder Morgan, explained that the overall direction of the pipeline is not expected to change over that time, though individual tweaks and changes at the ground level may happen as they continue having conversations with landowners. Fore said on Wednesday he had a conversation with a landowner and made an adjustment to a pipeline route to accommodate for a tree on the landowner’s lot.
“Now that the decision has been made, we will continue moving forward as we have been for the last several months,” Fore said.
He said that the pipeline is needed to capture natural gas that is flaring in West Texas and that Kinder Morgan’s research shows that the route they’re aiming for makes the most sense.
“We’ve looked at a variety of options that have impacts that are greater than our proposed route, more landowners, more environmentally sensitive areas, that’s why we choose the routes that we do and that’s why the state of Texas too has developed the laws that they have to try and make an accommodation for that,” Fore said.
He remains optimistic that Kinder Morgan and the plaintiffs in the lawsuit will be able to find common ground.
“This lawsuit really wasn’t just about our project, it was directed more at the industry,” Fore said.
He noted that the Permian Highway Pipeline does not pass through the city of Kyle.
However, Travis Mitchell, the mayor of Kyle, said the pipeline does pass through the city. He believes that Kinder Morgan was looking at old maps when they made their pipeline route.
Mitchell noted that the “Nance Tract,” which belongs to one of the plaintiffs in the suit. Additionally, the Six Creeks housing development which the pipeline will pass under has a main road which is part of the city and commercial development which will be part of the city in the future. There are already some homes at this development are not part of the city yet, but they will be annexed.
The pipeline will not pass under any currently existing homes, but Mitchell explained that it will force the city and the county to reevaluate future developments.
Local government officials had been working toward developing the Blanco River Ranch next to Six Creeks, and Mitchell said that this pipeline may impact where houses can be built on both of those properties.
“There is a problem in the way oil and gas companies can take your property without notice or public hearing or environmental impact studies or any of the many types of processes that a city or a utility company goes through when they exercise the awesome power of eminent domain,” Mitchell said.
“The community needs to pay attention, it may not of been your property this time but next time it could be your property that could get taken by a private company whose sole fiduciary interest is to their stakeholders and their shareholders,” Mitchell said. “So it’s scary to think that some property with a private profit motive can take your land and they don’t have to have any justification for why they want to take it.”
There are other pipelines in the Hill Country, in Hays County and across Central Texas, but this pipeline has sparked notable debate because it interfered with local development and came at a time when there was momentum from the public to challenge the way these pipeline routes are placed in Texas.
Last week, Austin’s City Council approved a resolution opposing the Permian Highway Pipeline and calling on the City Manager to study the potential water quality impacts of the proposed pipelines as well as other legal avenues to oppose it.