The Keystone XL and the Dakota Access pipelines recently suffered major legal defeats — the construction permit for the Keystone XL was revoked in April, and the Dakota Access was ordered to stop pumping oil by early August. Kinder Morgan’s 430-mile Permian Highway Pipeline faces a maze of litigation, and the legal action against other pipelines around the U.S. could have ripple effects in Texas.
In the case of the Dakota Access Pipeline, a judge ruled the multi-billion dollar pipeline, partially owned by Texas-based company Energy Transfers, must complete a more thorough environmental impact study in accordance with the National Environmental Protection Act (NEPA).
Jim Blackburn is an environmental lawyer and a professor at Rice University. He’s also the president of the Trinity Edwards Springs Protection Association (TESPA), which is suing Kinder Morgan for spilling 36,000 gallons of drilling fluid while constructing the Permian Highway Pipeline.
He believes Kinder Morgan — a multibillion dollar company — and the Army Corps of Engineers violated NEPA during the permitting process for the Permian Highway Pipeline.
“NEPA requires full consideration of the impacts of the action you're undertaking, as well as looking at the alternatives,” Blackburn said.
According to him, if Kinder Morgan and the Corps had considered the environmental impact of the pipeline and possible alternatives, the planned route would be different.
“We are fooling with a very perishable resource. There should not be pipelines coming across the Texas Hill Country,” he said. “They can go around the Hill Country. TESPA is not opposed to pipelines, per se. They're just putting the wrong pipeline in the wrong place.”
The spill polluted water wells in the area after the drilling fluid leaked through the karst topography.
TESPA’s litigation argues the spill was a violation of the Safe Drinking Water Act, but Blackburn said NEPA is also at issue in the pipeline plans.
The Army Corps of Engineers oversees construction permitting for pipelines that affect waterways. The Corps allowed Kinder Morgan and other companies to skip over the NEPA analysis through the “Nationwide Permit 12” process.
“The position was taken by Kinder Morgan and by the Corps (Army Corps of Engineers) that no separate NEPA analysis was required,” he said.
Blackburn said Nationwide Permit 12 inappropriately allowed Kinder Morgan to not consider alternative construction and routing plans.
Nationwide Permit 12 was actually struck down earlier this year by a federal court in a case involving the Keystone XL pipeline, and the Sierra Club is now suing the Corps in Texas over Kinder Morgan’s permit. The Supreme Court upheld the Keystone XL decision on Monday, but allowed other pipelines to proceed under the same permit while litigation continues in lower courts.
Sierra Club attorney Rebecca McCreary said her organization recently requested a temporary injunction to halt construction based on violations of NEPA. She said the environmental review didn’t consider all alternatives, including not building a pipeline.
“There would need to be a no-action alternative,” she said. “That's in a lot of environmental reviews. That's something that you look for: is no pipeline an option?”
She said the company and the Corps need to consider the whole environment covered by the pipeline.
“The harm isn't just to the aquifers or the endangered species, but to everything in the path of this almost 430-mile pipeline,” she said.
Blackburn said the nationwide flood of litigation against various pipelines is a response to the swing of a political “pendulum” — on one side, business interests calling for deregulation in the name of economic development, and on the other, environmental interests seeking more protections for the sake of public safety and conservation of natural resources.
He said the pendulum has swung toward the business side in recent years.
“Unfortunately, things happen when this pendulum swings,” he said. “People get hurt. Groundwater gets contaminated. Bad decisions get made, and that's just kind of the reality of the kind of the times we live in. The stakes are high.”
But he believes the pendulum is about to swing back the other way.
Kinder Morgan recently began drilling under the Pedernales River in the Fredericksburg area, and the company said the pipeline is about 70% complete.
Kinder Morgan declined to comment for this story, and the Army Corps of Engineers did not return TPR’s requests for comment.
The Corps and Kinder Morgan face multiple lawsuits across Texas — some of which center on the same issues from the Keystone XL and Dakota Access lawsuits.
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