Judge tells city: Drop challenge to pipeline
By Ralph K.M. Haurwitz

The Austin American-Statesman
11 January, 2002

Austin faces 'major sanctions' if it pursues criminal case, Sparks warns

A federal judge warned the City of Austin on Thursday that he would make it "pay heavily" if it pursues pending criminal charges against Longhorn Partners Pipeline LP. U.S. District Judge Sam Sparks said federal pipeline law and previous court cases make it clear that interstate pipeline regulation is solely the province of the federal government.

The judge stopped short of issuing a preliminary injunction sought by the company, but he expressed confidence that Austin's Municipal Court would throw out the roughly 100 criminal charges the city has filed against Longhorn for replacing portions of its underground pipeline in Southwest Austin without city approval.

At the conclusion of a half-day hearing, Sparks said he would impose "sanctions, and I mean major sanctions," if the city does not relent. "And the city will pay heavily," he warned.

The judge gave the city until the end of the month to grant or deny Longhorn's request for permission to replace 4 miles of pipeline. At the same time, he made it clear that he doesn't believe Longhorn is subject to the Save Our Springs ordinance or other city rules concerning safety or environmental protection.

"All safety factors, all water factors, are pre-empted," Sparks said. "The Congress has said it. If you don't like it, change the law."

Longhorn lawyer Barry Cannaday said Sparks' ruling was fair. Deputy City Manager Toby Futrell said Thursday afternoon that city officials had not decided how to proceed.

Dallas-based Longhorn is seeking to refurbish an idle crude oil line to move gasoline and other fuels from Houston to West Texas. Connecting lines would carry the fuels to Arizona, New Mexico, California and northern Mexico.

The plan has been approved by the Environmental Protection Agency and the Transportation Department's Office of Pipeline Safety, but the city, a water district and two landowners have challenged it in Sparks' court. The judge said he has reviewed about 200 pounds of paper in what he described as a 1,000-pound case. His previous orders allow Longhorn to work on its line but not to operate it while the case is under review.

The latest dispute emerged last month, when Longhorn began replacing pipe between West Slaughter Lane and West Gate Boulevard. City officials issued a stop-work order, contending that the SOS ordinance requires Longhorn to obtain city approval first because the 4-mile section is within the Barton Springs watershed.

Longhorn, which said it applied for approval about a year ago as part of an effort to cooperate with the city, continued to replace pipe. The city, in turn, filed criminal charges against the company and its vice president and asset manager, O.B. Harris. Those charges are scheduled to be heard March 6 in Municipal Court.

Thursday's hearing was held to consider Longhorn's request for an injunction barring such enforcement action. Sparks said he could not interfere in a criminal proceeding in another court, but he granted virtually every other legal point raised by Longhorn.

For example, the judge cut off an effort by John Bedingfield, an assistant city attorney, to justify the city's plan to review whether Longhorn's trench design and spill controls will protect streams. "The SOS ordinance has absolutely no applicability to this pipeline," the judge said.

On the other hand, Sparks reiterated his longstanding concern that a gasoline pipeline running through water supplies and neighborhoods poses a serious hazard.

"I think you would have to be a halfwit not to have that opinion," he said. "But we live under rule of law."
Source: original document

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