Kyle, TX (KXAN) — The battle over the Permian Highway Pipeline, which is slated to be constructed across Texas from Waha to Katy in October, has become more complicated.

Kinder Morgan, the company constructing the 430-mile, natural gas pipeline, filed a lawsuit Monday against the city of Kyle, claiming that a pipeline safety ordinance the city recently passed violates both federal and Texas law. It also calls for a pause to the enforcement of the city’s ordinance while this case is being sorted out in court.

The lawsuit was filed in the United States District Court for the Western District of Texas, Austin division.

Travis Mitchell, Mayor of the city of Kyle, responded Tuesday saying, “Kinder Morgan’s lawsuit was not unexpected. We will confer with our legal team in the coming days and decide the best course of action.”

Last week in an interview with KXAN, Mitchell said this ordinance, which was passed at a July 2 City Council meeting, would require that pipelines passing through their city be at 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 to KXAN last week, explaining that the city is opposing the pipeline, “using practically any and all means.”

Mitchell explained that the city of Kyle studied other cities and their ordinances related to pipelines as they crafted their own.

In previous interviews with KXAN, Kinder Morgan claimed that the pipeline would not pass under the city of Kyle, but the mayor refuted that and that Kinder Morgan had been using old maps to plan the pipeline route.

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

Other legal battles over the pipeline

Last week, Hays County and Travis Audobon Society filed a notice of intent to sue Kinder Morgan, United States Army Corps of Engineers (USACE), and the United States Fish and Wildlife Service (FWS). The notice calls for a full, independent environmental impact study. It also claims Kinder Morgan 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. The city of Kyle declined to comment on whether they would be joining in as a plaintiff on this lawsuit.

Read More: Hays County files second lawsuit against Kinder Morgan and their proposed pipeline

That notice focused on the environmental impacts of the pipeline and came after a Travis County District Court Judge dismissed a lawsuit on June 26 from the city of Kyle, Hays County, and three landowners against Kinder Morgan and the Texas Railroad Commission. The plaintiffs in that suit argued that the Railroad Commission had not carried out the public oversight with Kinder Morgan required by the Texas Constitution.

Read More: Judge dismisses lawsuit related to pipeline planned to run through parts of the Hill Country

While the judge dismissed that lawsuit, she did express worry over something she also voiced worry over in the court hearings: the ability for gas utilities in Texas to make plans for pipelines and exercise eminent domain with little public oversight.

The judge said that it was not her role to rule on the lack of oversight companies like Kinder Morgan have and that it is up to the Texas legislature to decide on that. The Texas legislature will not reconvene until 2021, at which time the pipeline is expected to be open.

The Permian Highway Pipeline

The Permian Highway Pipeline will cost an estimated $2 billion for the gas companies involved. It will be a 42-inch, buried pipeline designed to move as much as 2.1 billion cubic feet of natural gas per day. Kinder Morgan’s most recent lawsuit states that the pipeline is expected to be in service in late 2020. The pipeline will pass through sixteen Texas counties and link up with other pipelines along the way.

A Kinder Morgan map of the intended route of the Permian Highway Pipeline through Hays County. Map from Kinder Morgan dated May of 2019.

The pipeline is required to be buried at least three feet underground, and in certain areas (like those beneath roads) the pipeline will go even deeper, explained Allen Fore, Vice President of Kinder Morgan.

Fore said that the ordinance from the city of Kyle and the new lawsuit his company filed are not halting or delaying construction of the pipeline. He explained that construction for the pipeline is still set to begin in October.

Fore said that while Hays County is the most populous area the pipeline is slated to run through, the piece of the project that is running through the city of Kyle is small relative to the rest of the project. He also said that the city of Kyle and Hays County have been the only municipalities along this pipeline route that have voiced opposition.

While Fore said he is confident in the legal case Kinder Morgan is making against the city of Kyle, he said that even in the event that the court case is still up in the air in October, construction on the pipeline could begin elsewhere at that point.

“There is an importance for the overall project being in service on time, ” Fore said, noting that “all pieces have to connect by late 2020.

City of Kyle’s ordinance

The city of Kyle had been discussing this ordinance in May, before the judge had made a ruling on the first lawsuit the city and Hays County had filed against Kinder Morgan. It passed on second reading at another council meeting on July 2, just days after the judge had dismissed that suit.

The ordinance notes that “pipeline incidents have potential for significant impact on life, property, and the environment and just as transmission pipelines pose a risk to their surroundings, so does human activity in the vicinity of pipelines.”

The ordinance expresses worry that pipelines of a certain size can’t be modified or moved, adding that, “such large and high-pressure pipelines pose a unique and unprecedented impediment to the future development of the City and the provision of local government services.”

The ordinance works to reduce risk for operations and development near pipelines in the city. In the ordinance, the city of Kyle states that it has control over roadways and buildings within public rights-of-way and that natural gas pipelines which intersect in any way with city property or rights-of-way need to be a minimum of 13 feet deep.

It also asks that sixty days before the finalization of any natural gas transmission pipeline construction plans, that the pipeline operator should provide the city with the construction plans to make sure they are in compliance. At the time of this article, there are 69 days until October 1 when Kinder Morgan intends to begin construction.

The ordinance also notes that if a court finds a portion of this ordinance invalid, the rest of it should still stand.

At the heart of the suit over this ordinance is whether the city of Kyle has the authority to enact it.

Allen Fore explains that the main focus of Kinder Morgan’s argument in this suit is that the city of Kyle is stepping into the territory of regulating pipelines, which is something that is largely restricted in Texas to federal agencies and the Texas Railroad Commission.

But he acknowledged that the 13-foot requirement is also a point of friction for Kinder Morgan. Fore said that for a pipeline that is buried 3 feet deep, Kinder Morgan has to dig a 9-foot trench. So, he reasons, the trench for a pipeline buried 13-feet would “have to be exponentially deeper.”

That additional depth would make things more challenging on Kinder Morgan from an engineering standpoint, Fore said he worries that digging deeper may endanger the safety of workers or the aquifer they are working near.

“We were never consulted on the Kyle ordinance, we were never consulted on any kind of expertise we had,” Fore said.

In court back in May, the city of Kyle, Hays County and landowners also testified that they were never consulted about the location of the pipeline until the route was already set.

Fore remains optimistic despite the legal actions that Kinder Morgan and the City of Kyle will be able to talk and reach common ground.

“I have a lot of respect for the mayor, I think good intentions are in place here,” Fore said. “I am hopeful that we can sit down and have a conversation now about how we can work through this.”

The lawsuit against the city

The lawsuit argues that the city of Kyle’s ordinance is unconstitutional because natural gas pipelines are regulated first by federal law, and that “anything not reserved by federal law to federal regulatory authorities is reserved by Texas law to the Railroad Commission.”

The suit states that federal laws and Texas laws that regulate pipelines preempt local laws that try to do the same thing. In particular, the suit points to the Texas Utility Code to argue that local governments have not been allowed for decades to enforce ordinances that establish safety standards related to pipeline transportation. Kinder Morgan’s attorneys also pointed to a more recent addition to the Texas Natural Resources Code which says municipalities can only regulate certain aspects related to above-ground activity when it comes to oil and gas operations.

The lawsuit claims the city’s ordinance, “runs rough-shod over federal and Texas law, ignores the regulatory schemes that have been in place for
decades, and imposes criminal penalties for alleged violations.”

It also details why Kinder Morgan believes “Texas needs the Pipeline.” The attorneys for Kinder Morgan wrote that the Permian Basin region in Texas “is the most active and productive oil and gas field in the United States.” They added that production “has reached historic levels” and that experts “project it will increase for many years to come.”

Kinder Morgan said that there is, and there will continue to be “a shortage of oil and natural gas pipeline capacity out of the Permian Basin.”

When it comes to natural gas production, Kinder Morgan’s attorneys wrote that in the Permian Basin, most of the gas is produced with and from the same wells as oil production. They said that currently in the Permian Basin, around 400 million cubic feet of gas is produced along with the oil. They explained some of that gas is burned off in a flare because there is no pipeline to send it to, which leads to carbon dioxide and methane emissions. Some of that gas doesn’t get produced at all, which Kidner Morgan explained prevents the oil with that gas from being produced as well. 

“In either event, the lack of pipeline capacity harms the Texas economy and keeps the nation more dependent upon foreign energy sources,” Kinder Morgan’s attorneys wrote.

Allen Fore explained that it is up to the courts what the timeline will be for this suit.