Kinder Morgan Inc. (KMI) has secured another victory for the 2 Bcf/d Permian Highway Pipeline (PHP) cutting across the Hill Country of Texas after a U.S. District Court last week denied a preliminary injunction filed by opponents.
The favorable ruling for KMI follows a preliminary injunction hearing held earlier this month in the U.S. District Court for the Western District of Texas in Austin, which found that the plaintiffs failed to prove “a reasonably certain threat of imminent harm to a protected species.”
The application for a preliminary injunction was part of a lawsuit filed in February against federal authorities by the cities of Austin and San Marcos, as well as Hays and Travis counties, the Barton Springs Edwards Aquifer Conservation District and some landowners. The lawsuit challenges permitting of the pipeline and is seeking to halt it against defendants that include the U.S. Department of Interior and U.S. Fish and Wildlife Service (USFWS) and Kinder affiliates.
Plaintiffs claim the pipeline’s planned route through the Hill Country would travel through “sensitive environmental features, including the Edwards and Trinity Aquifer recharge zones as well as habitat for many endangered species,” including the golden-cheeked warbler, the Houston toad and the Tobusch fishhook cactus.
Last month, the plaintiffs requested a temporary restraining order (TRO) on construction of the 430-mile system, which is to terminate near Houston; the court denied that request. KMI separately is facing a lawsuit filed by landowners related to the U.S. Endangered Species Act (ESA).
U.S. District Judge Robert Pittman acknowledged that he “does not take lightly” evidence alleged by the plaintiffs that KMI violated mandatory terms and conditions of the USFWS biological opinion and incidental take statement to mitigate harm. The court said KMI’s repeated citation to dispute the allegations of potential irreparable harm “is far less persuasive” than it was during the court’s consideration of the TRO.
KMI had completed clearing potential warbler habitat in all but three areas of the pipeline’s route before the preliminary injunction hearing. However, the court said injunctions are forward-looking remedies that may be issued “only if future injury is certainly impending. Whatever harm resulted from Kinder Morgan’s past clearing activities cannot be remedied through a preliminary injunction,” Pittman wrote.
KMI has agreed to refrain from clearing activities in the areas in question until it has approval from the USFWS, according to court documents.
“The project has implemented measures to address those concerns, and we are confident that the project is in compliance with all legal and regulatory requirements,” KMI spokeswoman Katherine Hill said.
Meanwhile, because of restrictions implemented related to the coronavirus, KMI is “making adjustments as necessary to create social distancing and limited exposure to one another. We are not expecting it to impact the construction schedule at this time and are on track to be in service by early in the first quarter of 2021.”
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