Sparks to City: Pipe Down

City Council ponders its next move after a judge warns the city about pressing Longhorn Pipeline into local compliance.

Deputy City Manager Toby Futrell
Deputy City Manager Toby Futrell (Photo By John Anderson)

How far is the city willing to go in its (losing) battle with Longhorn Partners Pipeline? We may find out today (Thursday), after the Austin City Council privately ponders a judge's stern warning to the city to back off from its campaign to bring the federally regulated pipeline into local compliance.

Earlier this week, Deputy City Manager Toby Futrell stopped short of saying the city would drop criminal charges against the pipeline company, at least until the council had an opportunity to weigh in on the matter in executive session. Barring any changes, she said, the city and Longhorn are still due to appear in Municipal Court on Feb. 6 (rescheduled from its original March 6 date).

Still, Futrell acknowledged that U.S. District Judge Sam Sparks -- known for his ability to wither attorneys on both sides of the docket -- was unequivocal in his Jan. 11 comments from the bench. "He made it very, very clear that he was not happy with the city's position and the city's actions," Futrell said. "He said he believed the law was cut and dried -- and we were on the wrong side of it." The judge did deny Longhorn's request to enjoin the city from pursuing criminal charges against the company. But Sparks also said he expects the city to refrain from filing and pursuing the complaints, which "have no legal basis but merely serve the purposes of harassment or obstruction."

The city has filed several dozen misdemeanor charges against Longhorn for beginning mitigation work on a 4-mile segment of the aging pipeline without a city permit. Longhorn applied for a permit in December 2000, but advised the city it would begin work on portions of the pipeline in Southwest Austin in December 2001 -- with or without the city's green light. Longhorn had asserted that it was legally entitled to proceed based on the blessings of two federal agencies -- the Environmental Protection Agency and the Dept. of Transportation.

Sparks concurred, stating in his written ruling: "The Court has no doubt the federal Pipeline Safety Act pre-empts the Austin City Code's permit requirement." Noting that a federal inspector had been monitoring the pipeline construction site unbeknownst to the city, Sparks added a footnote to his ruling: "The Court was somewhat disappointed to discover the communication between the city and Longhorn is so deteriorated the city was not even aware of the federal presence on site."

City representatives say they've been reluctant to issue a permit because of concerns that the idle crude oil pipeline would pose a danger to drinking water and the environment once it's back in operation. Longhorn plans to move gasoline and other fuels through the pipeline from the Gulf Coast to markets in West Texas, New Mexico, and Arizona. On that score, Sparks gave the city until Jan. 31 to either grant or deny Longhorn its permit. The city has hired a third-party engineer to evaluate the permit application and make a decision by the judge's deadline, Futrell said.

Meanwhile, it was business as usual at the mitigation work site this week, said Longhorn spokesman Don Martin. "If you agree to wait for a city permit," he said, "you basically agree to never start." Except for that one important document, Martin said the pipeline company is complying with all other city rules and regulations that pertain to construction sites. Futrell took issue with that claim: "How can they be in compliance if they don't have a permit?"

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