Pipeline opponents watching Hays County suit
By MIKE EDDLEMAN
As area residents gather information and look for ways to avoid having a 42-inch oil pipeline project cut through wide swaths of their property here in Williamson County, they also have one eye on a lawsuit in Travis County District Court they hope might bring some relief.
Local property owners began receiving letters from the land acquisition firm representing Enterprise Products Partners, a pipeline construction company in Houston, in early Spring requesting access to their property for survey purposes.
Some residents, including Travis Redding and Clifton Bean, have received limited information from the company as they have inquired about the request and planned pipeline and are searching for options on how to counter the plan.
The pipeline is slated to be 571 miles long, passing through 17 counties from Midland to Harris County near the coast. Redding has been told it requires a 110-foot easement and the proposed route mapped through Williamson County shows it running north of Liberty Hill, around Georgetown to the north, then south between Hutto and Taylor.
Currently there are not many options to fight the company’s right of eminent domain, according to residents, but a lawsuit heard last week in 261st District Court in Travis County might change that.
At the heart of the suit is the argument by Hays County, the City of Kyle and area land owners, that there “needs to be a system of public accountability for the exercise of that eminent domain authority,” according to Attorney Renea Hicks.
While the power of eminent domain and history of limited oversight appears to favor the pipeline company, Hicks said that doesn’t match the Texas Constitution.
“The theory is that the Texas Constitution says if you are going to give a private entity what is the equivalent of a legislative power – which is what a necessity determination is – you have to set standards in advance for how they exercise the power,” he said. “You can’t just turn it over to them and say ‘It’s up to you’.”
There are only two things a pipeline company must do to begin the process of building a new pipeline and one is file for what Hicks said is a simple permit.
“For an oil pipeline in Texas, they get their eminent domain authority from Texas law and to go forward they have to get what’s called a T-4 permit from the Texas Railroad Commission,” Hicks said. “The T-4 permit is a ridiculously simple procedure. The company will just check a couple of boxes, submit it to the Railroad Commission, and the public never gets to see it or participate in anything about it. The Railroad Commission doesn’t do any substantive inquiry into whether they know what they’re doing, is it going in a safe place, how did they pick the route. They just kind of say they now have permission to go forward.”
Once that permit is approved, land acquisition can begin.
“At that point the pipeline company would start the process of actually condemning land for people who didn’t want to sell,” Hicks said.
He argues that the Texas Railroad Commission, or Texas Legislature, should exercise more control and authority over the process and it should be more transparent.
The second step is the company planning the pipeline must draft a Public Necessity Resolution, but the document is not made public or considered by anyone outside the company.
“They are given this power of eminent domain, yet they’re a private entity,” Hicks said. “They aren’t the government. They in fact want greater authority than the government has because they want all the good stuff, that is the power to seize people’s property, but they don’t want the obligation like a city council or the Williamson County Commissioners Court, which is to go through a public meeting.”
Even routes are rarely fully public through the planning and land acquisition process.
“They don’t even have to be that specific about the route,” Hicks said. “They have a line drawn on a map where you can’t tell exactly where it is really going, and nobody ever looks at it and nobody ever gets to see it.”
The lawsuit in Travis County – against the Texas Railroad Commission and pipeline company Kinder Morgan – is potentially precedent-setting in terms of how pipeline construction is regulated.
“I hate to couch it that way, but there is just not much directly on-point stuff there,” Hicks said. “It is trying to say for once and for all put some public accountability into this. As I told the judge the other day, I can’t understand how somebody in the last 75 years or whatever hasn’t ever raised this since the mid-30s. It seems obvious that there always comes a time when a Constitutional rule the people have put in place gets enforced.”
The District Judge – Lora Livingston – is expected to rule in the case sometime around mid-June.
Independent of the ongoing suit in Hays County, Hicks said there are steps property owners can take to learn more about the plan or organize against it.
“There are all sorts of legal issues that crop up,” Hicks said. “People should be checking with the Corps of Engineers, the U.S. Fish and Wildlife Service, the former if there are stream crossings because they will have to get permits from the Corps of Engineers for the stream crossings. The federal Clean Water Act requires that. If there are implications for endangered species habitat in the crossing there will have to be some kind of interaction with U.S. Fish and Wildlife Service in connection to whether the company has to get permits from them with respect to the potential taking of the habitat.”
Property owners are encouraged to talk to State Representatives and State Senators, encouraging them to support bills that “at the very least create public accountability, advanced notice and advanced hearings with standards about where these things go.”
According to Texas Railroad Commission spokesperson Ramona Nye and the Commission’s website, it “does not have any authority or jurisdiction over the siting or routing of a planned pipeline nor does the Commission have authority or jurisdiction over a common carrier pipeline’s exercise of its statutory right of eminent domain. The Commission’s role is to ensure operators of intrastate pipelines that begin and end in Texas construct, operate and maintain their pipelines in compliance with RRC pipeline safety rules…”
But Hicks said it does have the authority to create rules and putting pressure on the Railroad Commission is another avenue people can take.
“They should go to the Railroad Commission and say ‘You have the power to exercise full control over pipelines and all their relations with the public and this is certainly a relation with the public’,” he said. “Ask them to start paying attention and get some rules in place. They should be accountable and at least listen. I’m not optimistic they would, but they should.”
This project would be one of many in the future, Hicks believes.
“Once one pipeline comes through, a few years later another one is going to come through on the same route,” Hicks said. “There were efforts by some private property and environmental types – which is an unusual coalition – to get legislation passed the last session to oppose these standards through the Legislature. The Legislature, or the powers that be, anyway, just killed it.”
Legal representation – different from a lawyer to assist in the eminent domain proceedings – does not guarantee success, but can help navigate the issue.
“If they want to raise the issue they should get a lawyer,” Hicks said. “Just talking about it won’t do a bit of good. The pipeline company will do nothing. They will turn around and say ‘You can raise those issues once we’ve taken the property,’ but that’s too late. They can also talk to the local government.”
Ultimately, it becomes an issue of how much pressure any opposition to a pipeline project can put on the company and elected officials.
“The best thing they can do is start putting pressure on their public officials – commissions, state senators, state representatives – to begin to do something,” Hicks said. “The Railroad Commission could do something tomorrow, they could publish rules that say no more of this until we put rules in place about routing, because without an outcry from various people they will get run over.”
With the oil boom in Texas, Hicks said this is not an issue going away anytime soon.
“This is happening all over the area between the Permian Basin and the Gulf Coast,” Hicks said. “It is going on everywhere and every time the train is about to run people over on the track before the first time they say ‘We need to do something’ and they need to get going before the train gets too close to them.”