February 15, 2020

Statement by TREAD Coalition re: Denial of TRO in City of

Austin, et al v. Kinder Morgan Pipeline, LLC, et al

A federal district court in Austin denied the plaintiffs’ request for a Temporary Restraining Order
(TRO) Friday evening. The Court did not rule on the merits of the lawsuit but, instead, only on the
narrow point of whether sufficient “irreparable harm” had been shown to endangered species to
warrant emergency relief. This means that Permian Highway Pipeline (PHP) construction can
proceed while the merits of the lawsuit are being addressed.  The Court ordered a conference
call of the parties on Tuesday, February 18th at 3:30 pm to establish a schedule for the next
phase of whether a preliminary injunction should be issued.

We do not agree with the Court’s irreparable harm analysis, and its failure to consider such other
significant harms as loss of heritage oaks and spread of oak wilt. But it must be emphasized that
other major issues remain for decision by the Court, including.

1.     Whether PHP can proceed without review, including public hearings and comment, under
the National Environmental Policy Act (NEPA).  NEPA requires that major federal actions likely to
cause significant harm to the human environment be subject to careful evaluation and public
scrutiny. Public scrutiny of the PHP process has been essentially non-existent. It did not happen
at the state level when PHP used Texas’ outmoded, not to mention outrageous, rules for
allowing eminent domain to be conducted in.  And it has not happened at the federal level, as
federal agencies worked privately and hand-in-glove with PHP’s private companies to enable the
pipeline’s progress.  The Court made a pointed noted about this secretive process during the
hearing. A core objective of the TREAD coalition is to open up the hidden process of pipeline
approvals to advance public scrutiny, but the immediate task is to expose the Kinder Morgan
plans to ravage the Hill Country to the public eye as much as possible before all of the damage
is done.

2.     Whether the PHP can proceed without an Endangered Species Act Section 10 permit from
the USFWS.  The nationwide permit (under the Clean Water Act) and biological opinion (under
the Endangered Species Act) that Kinder Morgan obtained for the PHP are legally insufficient to
“permit” the entire project. Neither USACE nor USFWS documents should be interpreted to give
the lawful go-ahead to harming endangered species by Kinder Morgan clearing in the uplands
between the stream crossings.

It is important to understand that the TREAD Coalition and its supporters see a multitude of

problems, both legal and scientific, with the route that Kinder Morgan has chosen through the
Hill Country. The Endangered Species Act is only one small part of the problem. It just happened
to be the one most immediately triggered by the imminent threat to endangered species caused
by Kinder Morgan’s plans to begin clearing activities.

Texans deserve a public process, at both the state and federal levels, to weigh the value of PHP
against the impacts on our land and communities.  Before irreversible harm is done to our
beautiful Hill Country landscape, the safety of our families, our economic plans, the environment
and our aquifers, the public should be brought into the process and allowed to scrutinize the
science and offer their valuable perspectives and insights.  The final routing decision should be
made by public officials accountable to all the citizens of Texas.  Kinder Morgan executives
should not have the unilateral power to decide where to build an industrial highway that affects
thousands of landowners and dozens of communities.