482 F.Supp.3d 543
W.D. Tex.2020Background
- The Permian Highway Pipeline is a 429-mile natural gas pipeline in Texas; Sierra Club seeks to enjoin Corps verifications for 129 water crossings that allegedly affected listed species without NEPA review.
- Kinder Morgan proceeded under Clean Water Act Nationwide Permit 12; for 129 crossings Corps required preconstruction notifications and initiated ESA section 7 consultation with the Fish and Wildlife Service.
- The Service issued a Biological Opinion and Incidental Take Statement (Feb. 3, 2020) identifying effects on five species and imposing terms and conditions; Corps district verifications (Feb. 13, 2020) incorporated those terms but did not perform project-level NEPA analysis.
- Kinder Morgan began construction before litigation and was ~72% complete by July 2020; there were documented inadvertent drilling-fluid releases (Blanco River) and smaller returns at the Pedernales crossing.
- Sierra Club moved for a preliminary injunction to halt Corps verifications pending NEPA compliance and later sought leave to file supplemental declarations about drilling-fluid releases; the court granted leave but denied the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Sierra Club members (esp. Frantzen) have concrete, imminent injuries to property, recreation, and water use. | Kinder Morgan: only one member affected; past completed work is unredressable; other injuries generalized. | Court: Association has standing; Frantzen and members’ injuries are sufficiently concrete, traceable, and redressable. |
| Whether Corps’ failure to perform NEPA analysis supports injunction | Failure to complete NEPA and lack of public participation warrant injunctive relief (procedural injury + member harms). | Federal Defendants: procedural NEPA violation alone is insufficient to show irreparable harm; Corps not required to do additional NEPA. | Court assumed procedural injury for analysis but held Sierra Club failed to show irreparable harm necessary for injunction. |
| Irreparable harm from drilling-fluid spills and HDD operations | Past Blanco incident and Pedernales returns create substantial risk of future spills harming groundwater and members’ uses. | Kinder Morgan: Pedernales returns were minor, HDD is common and mitigated; Corps’ and contractor’s mitigation plans reduce risk. | Court: Evidence too speculative as to future, imminent, and irreparable harm; plaintiffs’ chain of assumptions falls short. |
| Permanent environmental impacts (easement, dredge/fill, species harm) | Permanent right-of-way, dredge-and-fill, and habitat loss cause ongoing irreparable injury not cured by mitigation. | Kinder Morgan: permanent impacts are minimal, offset by mitigation and conservation measures in Biological Opinion. | Court: Permanent impacts not shown to be more-than-minimal or unredressed by mitigation; no basis for injunction. |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (four-factor preliminary-injunction standard requiring likelihood of irreparable harm)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (courts must apply traditional injunction factors in NEPA cases)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements: injury-in-fact, traceability, redressability)
- City of Austin v. Paxton, 943 F.3d 993 (5th Cir. 2019) (association-member standing framework and elements)
- Aransas Project v. Shaw, 775 F.3d 641 (5th Cir. 2014) (injunctive relief requires a certainly impending future injury)
- Sabine River Auth. v. U.S. Dep’t of Interior, 951 F.2d 669 (5th Cir. 1992) (procedural NEPA violations and injunctive relief context)
- Friends of Lydia Ann Channel v. U.S. Army Corps of Engineers, [citation="701 F. App'x 352"] (5th Cir. 2017) (speculative harms insufficient to show imminent threat justifying injunction)
- Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803 (9th Cir. 2018) (harm that is extremely unlikely or speculative does not justify injunctive relief)