Plaintiffs who sued to stop construction of a natural gas pipeline through the Texas Hill Country had their hopes dashed Tuesday when a Travis County court dismissed their case.

There's been a public uproar over Kinder Morgan's plans to construct a new natural gas pipeline across Texas, because it would bisect the Texas Hill Country and take land from property owners across the region. The case, Sansom v. Texas Railroad Commission, was an attempt to stop the pipeline, which failed on Tuesday, when 261st District Judge Lora Livingston of Austin issued a letter ruling siding with the defendants.

The plaintiffs in the case are Hays County, the city of Kyle, Bee Spring Ltd., and Texas residents Heinz Roesch and Andrew Sancom. They sued the Texas Railroad Commission and five of its officers and directors, as well as Kinder Morgan Texas Pipeline and Permian Highway Pipeline.

Gavin Villareal, a partner at Baker Botts/courtesy photo

“It's important to note that the plaintiffs were not actually accusing Kinder Morgan of doing anything wrong. They were really instead complaining that the eminent domain process in Texas is somehow unconstitutional. We're happy the court applied well-established Texas law to reject those contentions,” said Baker Botts partner Gavin Villareal of Austin, who represented Kinder Morgan Texas Pipeline and Permian Highway Pipeline.

Livingston noted in the letter that there are important interests at stake on both sides. The plaintiffs may have their properties invaded and they fear dangerous conditions. The pipeline defendants invested $2 billion in the pipeline and argued the public needs access to natural gas from the Permian Basin.

“The court is concerned with a power that, when exercised by a governmental entity, must be done in the harsh light of public scrutiny of open meetings and public notice, but, when exercised by a private entity, may be determined without public notice by a select few, driven primarily by their financial interests,” the judge wrote.

But courts only apply the law, and don't dictate state policy, the letter said. The court needed to answer a legal question about whether the pipeline defendants were constitutionally exercising eminent domain powers, or whether anything should change on the government or pipeline defendants' ends.

Livingston explained in the letter that the plaintiffs alleged the defendants violated the Constitution because the way that the state allows gas utilities to use the power of eminent domain lacks safeguards, and gives insufficient due course of law. The plaintiffs alleged the government defendants use “toothless” rules to issue permits for gas utilities to use eminent domain.

The court wrote that it doesn't appear the plaintiffs were claiming that the pipeline defendants failed to comply with the law and procedures. Instead, they attacked those laws and procedures as unconstitutional, and claimed the pipeline defendants were wrong to follow them, the letter said.

Livingston granted the government's plea to the jurisdiction, agreeing with arguments that the Texas Legislature has never given the Railroad Commission the authority to oversee private gas utilities' use of eminent domain. The permits that it does grant to the utilities are not the source of the utilities' eminent domain powers. Instead, they received those powers directly from the Texas Constitution and a state law.

The court also granted the pipeline defendants' motion for summary judgment. The letter said that Texas' eminent domain laws have been the same for several decades and previous court decisions have held that they are constitutional. Livingston declined to revisit those rulings. The court also found that when the Legislature granted eminent domain authority to gas utilities, it didn't violate the Texas Constitution's prohibition on granting a special privilege or immunity that is out of the Legislature's control.

Richards Rodriguez & Skeith partner Clark Richards of Austin, who represented the plaintiffs, declined to comment. Assistant Attorney General Shelly Doggett, who represented the government defendants, didn't return a call seeking comment.

Railroad Commission spokeswoman Ramona Nye declined to comment.

Read the letter ruling:

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