Pipeline construction imminent, lawsuit filed

The imminent Permian Highway Pipeline project by Kinder Morgan that has been in the works since fall 2018 threatens to start construction as soon as they have federal permits, which are expected soon. However, the $2 billion, 42-inch natural gas pipeline that is set to run through multiple counties, including Hays, Gillespie and Blanco, has put a number of concerns on the minds of many Texas Hill Country communities and landowners, leading to a lawsuit filed on Feb. 5 by multiple cities, districts, property owners and Hays County.

Kinder Morgan, an energy infrastructure company specializing in oil and gas pipelines and terminals, said in a press release that the Permian Highway Pipeline (PHP) will help increase natural gas production from the Permian Basin to the up-and-coming markets along the Texas Gulf Coast.

“We are committed to supporting development of the infrastructure needed for our planned production growth in the Permian Basin,” Sara Ortwein, president, XTO Energy, said in the press release. “The Permian Highway Pipeline will provide additional capacity for reliable transportation of natural gas to the U.S. Gulf Coast.”

The pipeline is designed to ship up to 2 billion cubic feet per day of natural gas through approximately 430 miles of 42-inch pipeline, from Waha to the Katy area.

Yet, ever since the pipeline project began, counties, cities and landowners have protested its construction. Many have fought for it to be relocated elsewhere out of concern for their land, its value and the safety of the people who would live near the pipeline.

Patrick Reznik, an attorney with the Braun & Gresham Law Firm, has been defending many Hill Country landowners from efforts to take their land for the pipeline. Braun & Gresham serves as legal counsel to owners of rural land, including farming, ranching, recreational, conservation and pre-development land.

Reznik explained that Hill Country landowners are primarily concerned with the pipeline lowering their property values, thereby impacting the local economy, the environment and safety without a process that includes public participation — especially since the high pressure pipeline itself will be buried a mere 3-feet below ground.

“The pipeline creates a stigma in the potential future sale of the land in terms of a possible leak, explosions, perceived health and contamination, and permanent scar on the land,” Reznik said.

“We don’t see this as only a landowner or environmental issue. It’s a nonpartisan concern related to lack of public participation in choosing the location. With no public process we may get a really unfortunate selection for Texas,” Reznik said. “We believe there are better places to put it, but that hasn’t been considered in a public process. This pipeline will be a scar on the Texas Hill Country and change the economic future of the region.”

Texas wildlife concerns were also raised for the Golden-cheeked warbler, an endangered bird that nests only in the juniper-oak woodlands of Central Texas. Those trees would need to be cleared for the construction of the pipeline. Kinder Morgan has responded to those concerns by agreeing to clear those habitats by March 1 before the birds start the annual nesting season.

Since the beginning of the project, many affected landowners have filed lawsuits against Kinder Morgan and its use of eminent domain. Despite these legal battles, efforts to halt the pipeline have not been effective at stopping the pipeline so far and landowners only have a few more weeks to stop the clearing, according to Reznik.

Jessica Karlsruher is the executive director of the TREAD Coalition — a nonprofit group advocating for a new state policy for safer routing of pipelines with more public process. She said, “TREAD Coalition helped organize three of the lawsuits to make the point that there are no checks and balances. Pipeline companies make all the decisions on routes that affect landowners, local communities, the economy and the environment, without input or oversight.”

The cities of Austin, San Marcos and Kyle along with Hays and Travis counties, four property owners and the Barton Springs Edward Aquifer Conservation District filed a lawsuit on Feb. 5 regarding violations to the Endangered Species Act in hopes to stall the clearing of habitats.

“The issue is bigger than endangered species, but the federal law is the only one requiring notice to local communities, consideration of alternatives and protection of the environment," Karlsruher said. "The lawsuit complains that Kinder Morgan is trying to bypass even those protections by getting a limited permit that is not appropriate for a project of this size.”

Another group of landowners, led by the Niskanen Center in Washington, D.C., challenged Kinder Morgan’s claim that the Permian Highway is an intrastate pipeline. Their lawsuit filed on Jan. 24 argues that Kinder Morgan should have gotten approval for the route from the Federal Energy Regulatory Commission, which has a public process lacking in Texas.

“The Permian Highway Pipeline is an example of pipeline companies gaming the system in order to avoid oversight, which makes it easier to take people’s land,” said David Bookbinder, legal counsel for Niskanen

Finally, plaintiffs who challenged the Texas process under the Texas constitution last May submitted briefings on Feb. 4 in an appeal of the earlier ruling against them.

“All this litigation to challenge the Kinder Morgan route may fail because the laws are so weak, but that makes the point that the legislature needs to change the process,” said Karlsruher.

Yet this does not mean that all litigation will come to a halt. “Many landowners have not yet settled on final compensation and easement terms. There’s still a lot of litigation to be done,” Reznik said.

The Fifth Amendment of the U.S. Constitution requires the government to adequately compensate citizens when it takes private property for public use, as does Article One, Section 17 of the Texas Constitution. Reznik believes that under the current legal process that gives that government power to private pipeline companies, property owners are not “adequately” compensated for their property.

“Texas landowners are speaking up,” Reznik said. “They’re asking ‘Why am I not part of a public process that helps identify the best route and use of my property, while you (the pipeline company) get all the say in what occurs on my land?”

Reznik thinks the general timeline for the eminent domain process is too quick and works against the property owner, and that the property appraisals don’t adequately compensate for the property owner’s loss.

“Kinder Morgan is being very aggressive on starting a construction schedule,” Reznik said. “As land attorneys, we do our best in these situations to negotiate easement terms and final compensation amounts through a trial or mediation process.”

As the litigation continues, property right advocates, and Membership associations like TREAD, are seeking to make changes through the Texas legislature. Their legal and legislative efforts can be followed at treadcoalition.org.