Permian highway

The Sierra Club’s allegations “come close” to demonstrating “harm to the environment,” but a district court in Texas still shot down a request to halt construction of the Permian Highway Pipeline (PHP), a conduit designed to move about 2 Bcf/d to the Texas Coast.

Sponsor Kinder Morgan Inc. earlier in August reaffirmed the 42-inch diameter, 430-mile pipeline would be completed in 2021.The system in July was about 80% mechanically complete, with mainline compression 97% complete.

However, the pipeline has been plagued with litigation since it was launched. Opponents gained momentum in March when a horizontal directional drilling (HDD) incident during construction caused a 36,000 gallon drilling fluid spill east of the town Blanco in the Texas Hill Country. 

In April, the Sierra Club argued in a lawsuit that the U.S. Army Corps of Engineers had failed to comply with the National Environmental Policy Act, arguing that a more indepth environmental review was needed. The analysis, it argued, should integrate the biological opinion and incidental take statement issued by the U.S. Fish & Wildlife Service into the Army Corps’ Nationwide Permit 12 (NWP 12) authorization. 

The Sierra Club in June then requested a preliminary injunction to halt construction across 129 waterways (Sierra Club v. U.S. Army Corps of Engineers et al, No. 1:20-CV-460). Kinder was an intervenor for the defense.

The Army Corps may issue permits allowing for utility line construction in U.S. waters provided the activities do not result in the loss of more than one-half acre for each “single and complete project.” PHP’s route traverses 449 water crossings, but for 330, it did not have to notify the Army Corps because construction did not trigger any of general conditions, the court noted. 

In denying the injunction, Judge Robert Pitman wrote that the allegations about noncompliance “come close.” The Sierra Club “has marshaled a great deal of evidence that demonstrates harm to the environment,” but the allegations do not show “irreparable harm at this juncture.”

Still he said the Sierra Club may provide supplemental declarations regarding water quality concerns related to HDD. 

ClearView Energy Partners LLC analysts in a note Monday said “irreparable harm may have occurred, but due to timing, granting an injunction at this point does not undo it; therefore a injunction does not actually provide legal relief…” 

The judge explained that granting the injunction would not ‘unring the bell’ of the harm that did occur and to the extent future irreparable harm is alleged as a risk, Sierra Club failed to demonstrate a definitive threat.”