UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

CITY OF AUSTIN, et al., § 

 Plaintiffs, § 

 § 

vs. § Case No. 1:20cv00138-RP 

 § 

KINDER MORGAN TEXAS § 

PIPELINE, LLC, et al., § 

 Defendants. § 

ORDER 

The Court has before it Plaintiffs’ Application for Temporary Restraining Order (“TRO 

Application”). Notice of the TRO Application has been provided to counsel for both the private 

Defendants, Kinder Morgan Pipeline, LLC (“KMTP”) and Permian Highway Pipeline, LLC 

(“Permian LLC) (sometimes collectively, “Private Defendants”), and the federal Defendants 

(“Federal Defendants”). Private Defendants oppose the TRO Application. Federal Defendants 

have not yet stated a position. Having considered the matters raised by Plaintiffs and Defendants 

on the question whether the requested temporary restraining order should issue, and following a 

telephonic conference February 12, 2020, the Court determines as follows under Rule 65(d) of 

the Federal Rules of Civil Procedure: 

1. Plaintiffs’ TRO Application is GRANTED. 

2. Pending disposition of Plaintiffs’ Application for Preliminary Injunction (Dkt. 9), 

or until further order of this Court (whichever occurs earlier), Private Defendants KMTP and 

Permian LLC, along with their officers, employees, and agents, are ENJOINED from undertaking any physical activity involving land disturbance or tree or other vegetative clearing along or 

in the right-of-way or in any temporary work space related to this right-of-way in furtherance of 

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the natural gas pipeline known as the Permian Highway Pipeline, but as to the following Texas 

counties only: Kimble, Gillespie, Blanco, and Hays. 

3. The Court has determined that the Plaintiffs are likely to prevail on the merits of 

their claims that Defendants have violated the requirements of: (a) the Endangered Species Act, 

16 U.S.C. §1531 et seq (“ESA”); and (b) the National Environmental Policy Act, 42 U.S.C. 

§4321 et seq. (“NEPA”). The ESA makes it unlawful for any person to take any member of an 

endangered species with two narrow exceptions. Plaintiffs have established for this stage of the 

proceedings that Private Defendants KMTP and Permian LLC have not secured the requisite 

permit for to qualify for exception to the take prohibition with respect to a substantial portion – 

as much as 95% – of their proposed pipeline activities in these four Counties. NEPA is a procedural statute that requires agencies such as Federal Defendants to take a “hard look” in advance 

at the anticipated environmental consequences of their major federal actions. Plaintiffs have 

established for this stage of the proceedings that Federal Defendants have not met this “advanced 

hard look” requirement imposed by NEPA. 

4. Plaintiffs have also established that there is a substantial threat that they will suffer 

irreparable injury if this injunction is not granted. Plaintiffs have established that they will be 

irreparably harmed as a consequence of the environmental damage Private Defendants’ clearing 

and construction activity will inflict on endangered species and their habitats, mature oak forests 

threatened by encroaching oak wilt, and aquatic resources flowing from the Edwards Aquifer 

and its recharge zones. Plaintiffs’ aesthetic, recreational, conservation and financial interests 

will be irreparably harmed if Private Defendants proceed with the earth-disturbing clearance and 

construction activities that Private Defendants have indicated they will undertake before hearing 

on, and disposition of, Plaintiffs’ Application of Preliminary Injunction in this case in the 

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absence of a temporary restraining order prohibiting such activities in the interim between now 

and the preliminary injunction hearing. 

5. The threatened injury to Plaintiffs outweighs any harm that might befall Private 

Defendants. The harm to the environment and Plaintiffs’ interests in particular environmental 

resources that will follow in the absence of a court order is likely irremediable, whereas the harm, 

if any, to Private Defendants if a temporary restraining order issues is modest and mostly of the 

Private Defendants’ own making. Private Defendants had ample opportunity to seek a Section 

10 ITP, and to subject the proposed PHP route to NEPA review. Ultimately, this Court is not 

called on to determine whether the construction of the PHP should ultimately proceed through 

these four Counties, only whether it can proceed without the benefit of Congressionally mandated environmental reviews. 

6. Issuance of this restraining order will not disserve the public interest. Congress has 

firmly established the public interest in protecting endangered species, and the public also has a 

substantial interest in agencies planning to undertake significant construction activities in environmentally fragile areas being compelled, as NEPA requires, to take a comprehensive advance 

look at the environmental consequences of their planned actions. 

7. The Court exercises its discretion to not require Plaintiffs to provide security under 

Rule 65(c) of the Federal Rules of Civil Procedure. 

8. A hearing on Plaintiffs’ Application for Preliminary Injunction is scheduled to 

commence at ________ o’clock on February ___, 2020.

SIGNED this ________ day of February, 2020. 

__________________________________________ 

ROBERT PITMAN 

UNITED STATES DISTRICT JUDGE 

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