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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

CITY OF AUSTIN, et al., 

 Plaintiffs, 

v. 

KINDER MORGAN TEXAS 

PIPELINE, LLC, et al., 

 Defendants. 

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Case No. 1:20-cv-00138-RP 

DEFENDANTS KINDER MORGAN TEXAS PIPELINE, LLC AND 

PERMIAN HIGHWAY PIPELINE, LLC’S 

RESPONSE IN OPPOSITION 

TO PLAINTIFFS’ MOTION FOR EMERGENCY HEARING 

Minutes before the close of business on Friday, February 7, 2020, Plaintiffs filed and served 

a 54-page Application for Preliminary Injunction and supporting Memorandum, along with eight 

witness declarations and other exhibits. This occurs in a lawsuit that is but the latest in a series of 

cases filed in Austin by an overlapping set of complainants under a variety of legal theories, all 

aimed at derailing the Permian Highway Pipeline. 

Now, after serving a voluminous Application for Preliminary Injunction supported by a 

number of statements and exhibits, Plaintiffs seek a “TRO-like” expedited hearing on their 

Application within the next few days—before Defendants’ Opposition is even due. If granted, this 

request would materially prejudice Defendants’ ability to respond to the Application by depriving 

them of adequate time to mount a defense and response to the arguments, authorities and evidence 

in Plaintiffs’ briefing. 

Further, Plaintiffs’ Application amounts to an end-run around expert federal agencies that 

have, or will have, completed a comprehensive regulatory process in full compliance with an array 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 1 of 9
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of environmental laws relevant to construction of the pipeline, including the Endangered Species 

Act. Yet, as far as Defendants are aware, Plaintiffs have not served the government, despite the 

fact that the premise of their Application is that those federal authorizations and reviews are 

unlawful, that Defendants do not have the benefit of the decisions made by the federal agencies, 

and that, therefore, Defendants are violating environmental laws under which the federal agencies 

made the decisions to which Plaintiffs now object. It is fundamentally unfair for Plaintiffs to 

attempt to deprive Defendants of the benefit of a federal process on which they relied without 

engaging the federal agencies themselves in resolution of Plaintiffs’ claims that those agencies’ 

actions are unlawful. 

The relief that Plaintiffs seek in their Application would indefinitely delay the completion 

of this $2 billion pipeline and cost Defendants hundreds of millions of dollars in losses and added 

costs. Given such dire consequences, Plaintiffs should not be permitted to rush Defendants to the 

courthouse without a full and adequate opportunity for briefing, factual development, and 

preparation. 

The Permian Highway Pipeline 

Elements of this ongoing saga will be familiar to the Court.1

 Defendants Permian Highway 

Pipeline, LLC (“PHP”) and Kinder Morgan Texas Pipeline (“KMTP”) are in the midst of 

constructing a 430-mile, $2 billion natural gas pipeline in Texas. Since July 2018, PHP has worked 

closely with the U.S. Army Corps of Engineers (“Corps”) and later the U.S. Fish & Wildlife 

Service (“Service”), among others, to secure the necessary permits and authorizations to build the 

pipeline. PHP has complied with every directive of those federal agencies, has obtained or is 

                                                            

1 Permian Highway Pipeline, LLC et al. v. City of Kyle, No. 19-cv-00734 (W.D. Tex. 2019) 

(Pitman, J.); Pence, et al. v. Permian Highway Pipeline, LLC, No. 20-cv-00088 (W.D. Tex. 

2020) (Pitman, J.). 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 2 of 9
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obtaining every required state and federal permit and authorization after extensive environmental 

review, and is adhering to the same regulatory protocol followed by the Service and Corps in 

connection with pipelines all over Texas and throughout the United States. 

The PHP project has reached the point where it must pass through four counties of concern 

to Plaintiffs with potential golden-cheeked warbler habitat. On February 3, 2020, the Service 

issued a corrected Biological Opinion, which was first issued January 31, 2020, (Exhibit “A” 

hereto), which concluded that minimal direct impact to those potential habitats will occur if rightof-way clearance work is completed in those counties prior to the warblers’ migration back to 

Texas from Central/South America as soon as the month of March. Exhibit A at 47-

49. Accordingly, upon receipt of authorization from the Corps, PHP may move forward with the 

clearance work in those counties without risk of violating the Endangered Species Act.2

 This work 

should take two to three weeks. As Plaintiffs state, that authorization from the Corps is expected 

soon, but it has not been issued yet and PHP has not undertaken, and will not undertake, any 

clearing work in the identified warbler habitat until it has been. 

PHP faces a tight window to complete the clearance work as directed by the Service, but 

believes it can do so by commencing the clearance work promptly upon receipt of the Corps’ 

authorization.3 If the clearance work is not completed in the time frame identified by the Service, 

                                                            

2

 As Defendants will explain in greater deal in their Opposition, Plaintiffs’ exaggerated 

explanation of habitat impacts, and corresponding impact to the golden-cheeked warbler, is 

wrong. Defendants will clear 282 non-contiguous acres of potential warbler habitat out of an 

estimated 3.9 million acres in central Texas. The habitat is of varying levels of “suitability” for 

the warbler and is already fragmented. Exhibit A at 47-48. 

3

 Plaintiffs’ claim—that PHP requires a different type of authorization under the Endangered 

Species Act—is unfounded in a variety of fundamental legal ways, as Defendants will 

demonstrate in their Opposition. However, for this purpose it is worth noting that the type of 

permit that Plaintiffs think should be required, a so-called Section 10 permit, is (1) strictly 

voluntary; and (2) only available when actual death or injury of a protected species is reasonably 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 3 of 9
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then that clearance work, and corresponding pipeline construction, cannot begin again until 

August, when the warblers migrate back south again. This six-month delay in the pipeline’s 

construction would increase PHP’s construction costs by $135 million, and cause it to suffer lost 

revenues on commercial and delivery contracts of approximately $32 million per month of delay. 

Efforts to Stop the Pipeline 

This case is the third lawsuit filed in Austin over the past ten months by Plaintiffs’ law firm 

and an overlapping set of plaintiffs in an effort to halt the pipeline’s construction under a variety 

of legal theories. In April 2019, the Richards firm and its clients filed suit in Travis County District 

Court, claiming that the pipeline’s construction violated Texas Railroad Commission regulations 

and the State’s eminent domain statute. Judge Lora Livingston granted summary judgment in 

PHP’s favor and entered a take-nothing judgment against the plaintiffs. 

Then, on January 24, 2020, the Richards firm filed a lawsuit in this Court, claiming that 

the pipeline, which is entirely intrastate—beginning near Pecos, Texas, and ending near 

Columbus, Texas—has failed to comply with requirements of the Federal Energy Regulatory 

Commission that are applicable only to interstate pipelines. PHP and other defendants have filed 

motions to dismiss those claims, which remain pending. And now, the Richards firm has filed this 

lawsuit, claiming that the Service’s and Corps’ procedures for granting approvals and exceptions 

for the pipeline’s construction violate federal law. 

                                                            

certain to occur. Defs. of Wildlife v. Bernal, 204 F.3d 920, 927 (9th Cir. 2000); Memorandum 

from Principal Deputy Director, FWS, to Regional Directors 1-8 at 2 (Apr. 26, 2018), 

https://www.fws.gov/endangered/esa-library/pdf/Guidance-on-When-to-Seek-an-IncidentalTake-Permit.pdf. 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 4 of 9
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Plaintiffs’ Injunctive Requests 

At the close-of-business on Friday, February 7, 2020, Plaintiffs filed their application for 

preliminary injunction, accompanied by a 48-page memorandum of supporting arguments and 

authorities and 154 pages of exhibits. At this stage, even delaying the project for just a week or 

two, the result if Plaintiffs had sought and obtained a temporary restraining order, would make it 

impossible to clear the right-of-way in the potential warbler habitat counties before March 1, 

thereby delaying the pipeline’s construction by at least six months, resulting in hundreds of 

millions of dollars in added costs and losses. 

By Local Rule, PHP’s Opposition to Plaintiffs’ Application for Preliminary Injunction 

must be filed by midnight on Friday, February 14. Yet, in spite of the volume of their motion, 

memorandum and exhibits, and the enormous impact that injunctive relief would have upon PHP, 

Plaintiffs ask for the evidentiary hearing on their Application to be scheduled on an “emergency” 

basis, either before or on the day that PHP’s Opposition to that Application is due. The Court 

should decline their invitation. 

Defendants are entitled to adequate time and a fair opportunity 

“A preliminary injunction is an extraordinary remedy.” Byrum v. Landreth, 566 F.3d 442, 

445 (5th Cir. 2009). Unlike a TRO, Federal Rule of Civil Procedure 65(a)(1) requires that 

preliminary injunctions may only be issued “on notice to the adverse party.” The Fifth Circuit has 

interpreted Rule 65(a)(1) to mean, that “where factual disputes are presented, the parties must be 

given a fair opportunity and a meaningful hearing to present their differing versions of those facts 

before a preliminary injunction may be granted.” Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 

(5th Cir. 1996) (quoting Commerce Park at DFW Freeport v. Mardian Construction Co., 729 F.2d 

334, 342 (5th Cir. 1984)). 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 5 of 9
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Plaintiffs’ three-paragraph argument for an “emergency” hearing is insufficient to 

accelerate scheduling of a hearing on the extraordinary remedy they seek. PHP looks forward to 

presenting evidence and arguments in opposition to Plaintiffs’ Application for Preliminary 

Injunction. In fact, PHP intends to ask the Court for several hours of time to present live witnesses 

and corresponding argument. 

Plaintiffs’ real quarrel in this lawsuit is that they do not agree with how the federal agencies 

implement the Endangered Species Act; the core of this case is a challenge to federal agency 

action. But, through an extensive process, the federal government has assessed the very impacts 

of concern to Plaintiffs and has, or will, conclude its process under applicable federal law. As part 

of that process, the Service issued a biological opinion (“BiOp”) as required by the Endangered 

Species Act, stating it “does not expect, directly or indirectly, that the [PHP] project will reduce 

appreciably the likelihood of both the survival and recovery of the [golden-cheeked warbler] in 

the wild by reducing the reproduction, numbers, or distribution of [golden-cheeked warbler].” 

Exhibit A at 48-49. This, in part, because PHP agreed to clear potential golden-cheeked warbler 

habitat, as determined by the Service, before March 1, which is the earliest date mating season 

may begin. Despite the Service’s 64-page analysis of the pipeline under the Endangered Species 

Act, Plaintiffs claim that their own private assessment is superior and barely even acknowledge 

the existence of the February 3 Biological Opinion, issued by the expert agency charged with 

implementation of the ESA, which contradicts their own conclusions in every respect. 

Though Plaintiffs only seek injunctive relief against PHP, the four federal defendants 

should be served, allowed to enter appearances, and potentially have an opportunity to weigh in at 

any hearing—preliminary or otherwise. Plaintiffs’ claim is that the process the federal agencies 

followed to evaluate the impacts of concern to Plaintiffs was unlawful and that the protections 

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afforded to Defendants under the Endangered Species Act are illegal, causing Defendants to 

allegedly be in violation of that statute. Further, Plaintiffs seek to enjoin PHP from engaging in 

certain actions unless and until the Service completes a National Environmental Policy Act 

(“NEPA”) review of permits. Yet NEPA is solely a federal obligation and the Court should allow 

the federal defendants to appear before any hearing on Plaintiffs’ claims that inherently implicate 

federal interest. Given that the heart of this case is the validity of actions taken by federal agencies, 

those agencies should have the opportunity to engage in resolution of Plaintiffs’ claims. 

Moreover, Plaintiffs have filed 48 pages of factual claims and legal analysis, along with 

154 pages of witness declarations and other exhibits. Plaintiffs’ filing demonstrates the complexity 

of the subject matter at hand and the long procedural record of PHP securing required permits and 

approvals from many different government authorities. It would be inequitable to proceed to a 

hearing on an “extraordinary remedy” before Defendants have their seven days to respond under 

Local Rule CV-7(e). See Chapman v. Pennsylvania Interscholastic Athletic Ass'n, No. 1:14-CV00192, 2014 WL 580212, at *3 (M.D. Pa., Feb. 12, 2014) (mem. op.) (denying motion for 

expedited preliminary injunction hearing, finding “that holding an expedited hearing would 

prejudice Defendants by depriving them of adequate time to prepare briefing and argument on the 

preliminary injunction motion, or the opportunity to engage in discovery.”); Tebo v. Henderson, 

No. CIV-A-00-40071-NMG, 2000 WL 1092274, at *2 (D. Mass., Aug. 1, 2000) (delaying any 

hearing on the preliminary injunction until opposing party had “adequate time to prepare 

therefor”). 

All parties and the Court should have adequate time to review both sides’ briefing and 

prepare for what may be a day-long evidentiary hearing. Plaintiffs’ proposed hearing timeline, 

which would inherently abridge Defendants’ opportunity to submit fulsome briefing and evidence, 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 7 of 9
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will deny Defendants a fair opportunity and a meaningful hearing to present their differing version 

of the facts. 

* * * 

FOR THESE REASONS, Defendants Kinder Morgan Texas Pipeline, LLC and Permian 

Highway Pipeline, LLC request that the Court deny Plaintiffs’ Motion for Emergency Hearing, 

and grant them such other relief to which they are entitled. 

Dated February 9, 2020. Respectfully submitted, 

/s/ W. Stephen Benesh 

W. Stephen Benesh 

Texas State Bar No. 02132050 

steve.benesh@bracewell.com

BRACEWELL LLP 

111 Congress Avenue, Suite 2300 

Austin, Texas 78701 

Tel.: 512.494.3680 

Fax: 800-404-3970 

Ann D. Navaro (pro hac vice motion pending)

ann.navaro@bracewell.com

Brittany M. Pemberton (pro hac vice motion 

pending) 

brittany.pemberton@bracewell.com

BRACEWELL LLP 

2001 M Street NW, Suite 900 

Washington DC 20036 

Tel: 202.828.5811 

Fax: 800.404.3970 

Attorneys for Defendants Kinder Morgan 

Texas Pipeline, LLC and Permian Highway 

Pipeline, LLC 

Case 1:20-cv-00138-RP Document 12 Filed 02/09/20 Page 8 of 9
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CERTIFICATE OF SERVICE 

 The undersigned hereby certifies that on February 9, 2020, all counsel of record who are 

deemed to have consented to electronic service are being served with a copy of this document via 

the Court’s CM/ECF system. 

 

 The undersigned further certifies that he caused a true copy of this document to be served 

on the following counsel via e-mail and USPS first class mail: 

Lynn E. Blais 

Attorney at Law 

Texas Bar No. 02422520 

727 E. Dean Keeton Street 

Austin, TX 78705 

lblais@law.utexas.edu 

Sherine E. Thomas 

State Bar No. 00794734 

Sharon K. Talley 

State Bar No. 19627575 

Tim Labadie 

State Bar No. 11784853 

TRAVIS COUNTY ATTORNEY’S OFFICE 

P. O. Box 1748 

Austin, Texas 78767 

sherine.thomas@traviscountytx.gov 

sharon.talley@traviscountytx.gov 

tim.labadie@traviscountytx.gov 

Renea Hicks 

Attorney at Law 

State Bar No. 09580400 

LAW OFFICE OF MAX RENEA HICKS 

P.O. Box 303187 

Austin, Texas 78703-0504 

rhicks@renea-hicks.com 

/s/ W. Stephen Benesh 

 W. Stephen Benesh 

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