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Lawyers Expect Feds To Approve Contested Texas Pipeline Within Days

Signs opposing the Kinder Morgan pipeline in Driftwood, Texas.
Gabriel C. Pérez
Central Texas landowners are fighting the 430-mile natural gas pipeline.

The U.S. Army Corps of Engineers is expected to give Houston-based pipeline giant Kinder Morgan the go-ahead to clear land for a hotly contested natural gas line through the Texas Hill Country within the next two days, attorneys for the company and the federal government said Wednesday.

“The Corps expects to issue the verifications under the Clean Water Act that would permit this project to go forward no later than Friday,” Department of Justice lawyer Devon McCune said during a telephone hearing relating to a federal lawsuit challenging the project.

Still, a lawyer for Kinder Morgan said during the hearing that the company would not move forward with construction on the planned Permian Highway Pipeline until another hearing in the case that is tentatively set for Friday, even if it does receive the Corps’ approval.

The U.S. is among the defendants named in the lawsuit, which was brought against the pipeline company in early February by Central Texas landowners, the City of Austin and other local governments over concerns about possible environmental damage and allegations of regulatory violations.

Opponents say the planned 430-mile pipeline from the West Texas oil patch to the Gulf Coast could harm federally protected birds and salamanders in the Texas Hill Country. They claim the company is therefore required to obtain federal permits to “take” the animals but has failed to do so.

The lawsuit specifically claims Kinder Morgan has failed to comply with the Endangered Species Act and other federal environmental regulations.

“Kinder Morgan and Permian Highway Pipeline are in full compliance with the Endangered Species Act,” the company said in a statement. “PHP’s environmental assessments, among other things, comprehensively considered those endangered species that could potentially be affected by the project, and our construction plans have been designed to minimize impacts to those species.”

While the company has already started construction on the pipeline in the West Texas oil patch, the work has yet to move east into the ecologically sensitive Hill Country.

The project has been the target of multiple other lawsuits, but the company has forged ahead. Kinder Morgan said in January it had obtained access to “nearly all” of the private land it needs to finish the pipeline. The company plans to have the project in service by early 2021.

During Wednesday’s hearing, Kinder Morgan attorney Steve Benesh urged U.S. District Judge Robert Pitman to reject the opponents’ requests to at least temporarily block the project while the litigation continues.

Benesh said the company only has until early March to clear the pipeline’s path through Central Texas because after that window, federally protected golden-cheeked warblers will return to the region from Central and South America for their nesting and mating season.

“If the clearing work is not completed between now and the start of March, then the pipeline construction must be halted for six months until August, when the warblers migrate south again,” he said.

Benesh said such a delay would cost the company at least $135 million.

“The fact that there’s some short amount of time before Kinder Morgan feels the need to rush its way through endangered species habitat is not the fault of the plaintiffs,” Lynn Blais, an attorney for the pipeline opponents, told the judge. “Their money argument cannot carry the day.”

Judge Pitman did not rule on the opponents’ requests during Wednesday’s hearing, telling both sides he needed more time to catch up on the case.

Pitman indicated he would schedule another hearing for Friday afternoon on the plaintiff’s motion for a temporary restraining order but only after getting assurances from Kinder’s attorney that the company would not begin the clearing activities until that hearing.

“All I’m trying to do is establish the status quo,” Pitman said, “So that I can make a more informed decision.”


From Courthouse News Service.