Grand Prairie, Texas 2008 Lawsuit Response

Case 3:08-cv-01724-D
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Filed 10/15/2008
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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TEXAS MIDSTREAM GAS
SERVICES, L.L.C.,
Plaintiff,
VS.
CITY OF GRAND PRAIRIE; ROB
ARD, in his official capacity as Chief
Building Official of the City Of Grand
Prairie; RON McCULLER, in his
official capacity as Director of Public
Works of the City of Grand Prairie;
ROMIN KHAVARI, in his official
capacity as City Engineer of the City
of Grand Prairie; and JOE SHERWIN,
in his official capacity as Floodplain
Administrator of the City of Grand
Prairie,
Defendants.
Civil Action No. 3-08-CV-1724-D
THE CITYS RESPONSE TO PLAINTIFFS

APPLICATION FOR PRELIMINARY INJUNCTION AND BRIEF IN SUPPORT
Marty L. Brimmage, Jr.
State Bar No. 00793386
Aimee M. Minick
Lacy M. Lawrence
HAYNES AND BOONE, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
Telephone: (214) 651-5000
Telecopier: (214) 651-5940
ATTORNEYS FOR DEFENDANT
CITY OF GRAND PRAIRIE, TEXAS
Case 3:08-cv-01724-D
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TABLE OF CONTENTS
Page
I.
SUMMARY OF ARGUMENT............................................................................. 1
II.
FACTS ................................................................................................................. 3
III.
A.
The City and TMGS actively negotiated Section 10. The purpose was
to promote compressor stations in the City that are compatible with
surrounding development. ....................................................................... 3
B.
The Citys Permitting Process. ................................................................ 6
C.
TMGS has not applied for a SUP under Section 10................................ 8
D.
TMGS has not complied with any of the other permitting

requirements. ......................................................................................... 10
E.
TMGS has not received required federal permits................................. 14
F.
TMGSs Misleading Public Relations Campaign. ................................. 14
ARGUMENTS AND AUTHORITIES .............................................................. 15

A.
Because there is no justiciable case or controversy and TMGS has

alleged no cognizable injury, the Court lacks subject matter
jurisdiction.............................................................................................. 15
B.
TMGS has failed to satisfy its burden of establishing that it is entitled

to injunctive relief. ................................................................................. 18
1.
TMGS cannot establish a likelihood that it will prevail on the

merits of any of its claims. .......................................................... 19
a.
TMGS cannot establish a likelihood of success on the

merits because the PSA and Texas state law do NOT
preempt Section 10. .......................................................... 19
i.
TMGS repeatedly admits that only safety

regulations are preempted..................................... 19
ii.
Section 10 is NOT preempted because it is not a

safety regulation..................................................... 22
Case 3:08-cv-01724-D
2.
3.
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b.
Section 10 does not usurp TMGSs alleged eminent

domain power and, even if it did, the Citys interest in
Section 10 is superior to TMGSs. .................................... 24
c.
Section 10 does not violate the Dormant Commerce

Clause. ............................................................................... 26
TMGS has not shown and cannot show ANY of the prerequisites
for injunctive relief. ..................................................................... 30
a.
TMGS has failed to demonstrate that it will suffer

irreparable harm in the absence of an injunction. .......... 32
b.
A preliminary injunction will disserve the public and

injure the City. .................................................................. 35
TMGS should be required to post a significant bond if the Court

decides to grant the preliminary injunction. .............................. 36
ii
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TABLE OF AUTHORITIES
Page
Cases
Aetna Life Ins. Co. v. Haworth,
300 U.S. 227 (1937) .................................................................................................. 15
Algonquin Lng v. Loqua,
79 F. Supp. 2d 49 (D.R.I. 2000)................................................................................ 22
Allied Marketing Group, Inc. v. CDL Marketing, Inc.,
878 F.2d 806 (5th Cir. 1989) .................................................................................... 34
ANR Pipeline Co. v. Iowa St. Commerce Comm'n,
828 F.2d 465 (8th Cir. 1987) .................................................................................... 21
Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry,
476 F.3d 326 (5th Cir. 2007) .............................................................................. 19, 21
Camps Newfound/Owatonna v. Town of Harrison,
520 U.S. 564 (1997) .................................................................................................. 21
Cipollone v. Liggett Group,
505 U.S. 504 (1992) .................................................................................................. 21
Citibank, N.A. v. Citytrust,
756 F.2d 273 (2d Cir. 1985)...................................................................................... 32
City of Cleveland v. City of Brook Park,
893 F. Supp. 742 (N.D. Ohio 1995) .......................................................................... 30
Deerfield Medical Center v. City of Deerfield Beach,
661 F.2d 328 (5th Cir.1981) ..................................................................................... 33
Doe v. Duncanville Indep. Sch. Dist.,
994 F.2d 160 (5th Cir. 1993) .................................................................................... 31
Evergreen Presbyterian Ministries, Inc. v. Hood,
235 F.3d 908 (5th Cir. 2000) .................................................................................... 18
Exxon Corp. v. Governor of Md.,
437 U.S. 117 (1978) .................................................................................................. 28
GoNannies, Inc. v. GoAuPair.com, Inc.,
464 F. Supp. 2d 603 (N.D. Tex. 2006)...................................................................... 33

iii
Case 3:08-cv-01724-D
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Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local
No. 70, 415 U.S. 423 (1974)........................................................................................ 1
Guschke v. Oklahoma City,
763 F.2d 379 (10th Cir. 1985) .................................................................................. 30
Hoover v. Morales,
164 F.3d 221 (5th Cir. 1998) .............................................................................. 18, 32
Intl Truck & Engine Corp. v. Bray,
372 F.3d 717 (5th Cir. 2004) .................................................................................... 27
Justin Indus., Inc. v. Choctaw Securities, L.P.,
920 F.2d 262 (5th Cir. 1990) .................................................................................... 30
Kaepa, Inc. v. Achilles Corp.,
76 F.3d 624 (5th Cir. 1996) ...................................................................................... 35
Kern River Gas Trans. Co. v. Clark Cty, Nev.,
757 F. Supp. 1110 (D. Nev. 1990) ............................................................................ 21
Kinley Corp. v. Iowa Utils. Bd.,
999 F.2d 354 (8th Cir. 1993) .................................................................................... 21
Minn. v. Clover Leaf Creamery Co.,
449 U.S. 456 (1981) .................................................................................................. 28
Monk v. Huston,
340 F.3d 279 (5th Cir. 2003) .............................................................................. 15, 16
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) .................................................................................................. 33
Morgan v. Fletcher,
518 F.2d 236 (5th Cir. 1975) .................................................................................... 34
N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health,
545 F. Supp. 2d 363 (S.D.N.Y. 2008) ....................................................................... 31
Natural Gas Pipeline Co. of Am. v. Railroad Comm'n of Tex.
679 F.2d 51 (5th Cir. 1982) ...................................................................................... 21
iv
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New Hampshire Motor Trans. Ass'n v. Plaistow,
67 F.3d 326 (1st Cir. 1995)....................................................................................... 27
New Orleans Pub. Serv., Inc. v. Council of New Orleans,
833 F.2d 583 (5th Cir. 1987) .................................................................................... 17
Nichols v. Alcatel USA, Inc.,
532 F.3d 364 (5th Cir. 2008) .............................................................................. 19, 36
Northern Border Pipeline Co. v. Jackson Cty, MN,
512 F. Supp. 1261 (D. Minn. 1981).......................................................................... 21
Parkside Partners v. City of Farmers Branch,
469 F. Supp. 2d 757 (N.D. Tex. 2007)...................................................................... 31
Porter v. Southwestern Pub. Serv. Co.,
489 S.W.2d 361 (Tex. Civ. App.-Amarillo 1972, writ refd n.r.e.)..................... 25, 26
Purple Onion, Inc. v. Jackson,
511 F. Supp. 1207 (N.D. Ga. 1992) .......................................................................... 30
Tex. Manufactured Hous. Ass'n v. City of La Porte,
974 F. Supp. 602 (S.D. Tex. 1996) ........................................................................... 30
Tex. Manufactured Housing Ass'n v. City of Nederland,
101 F.3d 1095 (5th Cir. 1996) .................................................................................. 27
Texas v. United States,
497 F.3d 491 (5th Cir. 2007) .................................................................................... 17
Texas v. United States,
523 U.S. 296 (1998) .................................................................................................. 15
Tough Traveler, Ltd. v. Outbound Prod.,
60 F.3d 964 (2d Cir. 1995)........................................................................................ 32
Trans World Airlines, Inc. v. Mattox,
897 F.2d 773 (5th Cir. 1990) .................................................................................... 31
United Gas Pipeline Co. v. Terrbonne Parish Police Jury,
319 F. Supp. 1138 (E.D. La. 1970)........................................................................... 21
United Trans. Union v. Foster,
205 F.3d 851 (5th Cir. 2000) .................................................................................... 17
Case 3:08-cv-01724-D
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University of Texas v. Camenish,
451 U.S. 390 (1981) .................................................................................................. 18
Urban Developers LLC v. City of Jackson,
468 F.3d 281 (5th Cir. 2006) .................................................................................... 15
VRC LLC v. City of Dallas,
460 F.3d 607 (5th Cir. 2006) .................................................................................... 31
West Lynn Creamery, Inc., v. Healy,
512 U.S. 186 (1994) .................................................................................................. 27
Wireless Agents, L.L.C. v. T-Mobile USA, Inc.,
2006 WL 1540587 (N.D. Tex. June 6, 2006)............................................................ 32
Federal Statutes
49 U.S.C. 60104(c)..................................................................................................... 20
49 U.S.C. 60104(e)..................................................................................................... 24
State Statutes
Tex. Util. Code 121.201(b)(2).................................................................................... 20
Federal Rules
Federal Rule of Civil Procedure 65(c) ......................................................................... 36
vi
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COMES NOW Defendant City of Grand Prairie, Texas (the City) and files
this its Response to Plaintiffs Application for Preliminary Injunction and Brief in
Support (the PI Response),1 and would respectfully show the Court as follows:
I.
SUMMARY OF ARGUMENT
The purpose of a preliminary injunction is to preserve the status quo pending
a determination on the merits. However, in this case Texas Midstream Gas
Services, L.L.C.s (TMGS)2 preliminary injunction seeks to disrupt the status quo
and have the Court prohibit the City from enforcing an ordinance (Section 10) so
that TMGS can construct a natural gas compressor station within the City limits
before a determination on the merits in this case. Such action would make a
determination on the merits moot.
TMGSs Application for Preliminary Injunction (the PI) and its
contemporaneous public relations campaign are based on misdirection and a false
premise: that the City is preventing TMGS from building a compressor station on
land that is owned by TMGS. Specifically, that Section 10, designed to promote the
1 The Courts order dated October 2, 2008 combined the deadline for the TRO response and the PI
Response. This PI Response focuses on the Preliminary Injunction Application since the purpose of a
TRO ceases upon the Courts consideration of the preliminary injunction (see Granny Goose Foods,
Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, 415 U.S. 423, 439 (1974)
(stating that the purpose of a TRO is to preserve the status quo of the subject matter of the litigation
and prevent irreparable harm until a hearing can be held on a preliminary injunction)). To the
extent the TRO is not moot, it should be denied for the same reasons the PI should be denied as set
forth fully in this PI Response.
TMGS and Chesapeake have been used synonymously by both TMGS and the City - as stated by
TMGS, TMGS is a gas utility and subsidiary of Chesapeake Energy Marketing, Inc. which is an
affiliate of Chesapeake Energy Corporation. September 30, 2008 Letter, App. 131-132.
2

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construction of compressor stations that fit with the aesthetics of an established

zoning district and to ensure compatibility with the surrounding community, is
somehow magically going to: i) prevent TMGS from getting gas to market; ii)
prohibit future royalty payments; and iii) create a collapse in the natural gas
markets.
Once the falsity of TMGSs basic premise is exposed, both TMGSs
Application and its public relations campaign are defeated. TMGSs self-inflicted
and alleged harm (like having to search for a new location for its compressor station
and abandoning its easements and other pipeline facilities) is exposed as nothing
more than a figment of its imagination.
While its arguments for the PI are full of confusion and obfuscation, TMGS
ignores the issues central toand dispositive ofthe claims at issue.
First, the Court does not have jurisdiction in this case, because there is no
justiciable case or controversy. The claims alleged by TMGS are not yet ripe for
judicial review.
Second, TMGS cannot meet the first requirement of injunctive reliefthat it
is likely to win on the merits of its claims. Indeed, all of its claims fail on their face.
Section 10 is not preempted because it is not a safety regulation. Nor is Section 10
an impermissible interference with TMGSs eminent domain authority. And
Section 10 does not burden interstate commerce, and therefore cannot violate the
dormant Commerce Clause. Because Section 10 is neither preempted nor
unconstitutional, TMGS cannot demonstrate a likelihood of success on the merits.

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Finally, TMGS has not established any of the other prerequisites for
injunctive relief. It will not suffer irreparable harm without an injunction. In
fact, if TMGSs PI is denied and TMGS complies with Section 10 and builds the
Barnes Compressor Station, at best TMGSs damages are the difference between
the economic cost of compliance with Section 10 and the cost without compliance
with Section 10. In addition, the injury to the City, and to the public as a whole,
outweighs any benefit of an injunction to TMGS.
For the reasons set forth above and detailed below, TMGS has failed to meet
its considerable burden in demonstrating that it is entitled to a preliminary
injunction. Therefore, TMGSs requested injunction should be denied.
II.
FACTS
A.
The City and TMGS actively negotiated Section 10. The purpose was to
promote compressor stations in the City that are compatible with
surrounding development.
1.
Article 4 of the Unified Development Code (the Code) is titled
Permissible Uses and governs the permissible uses of buildings and structures
located within the City.3
2.
In December 2007, the Citys Planning and Development Department
(the Department) forwarded a proposed amendment to Article 4 of the Code

(Section 10) to the City Council Development Committee (the Development
Committee).4 The purpose of Section 10 was to provide for a Specific Use Permit
Lasher Aff. 3, App. 002.

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(SUP) process regarding natural gas compressor stations, to create design

standards to make these stations compatible with the visual context of surrounding
community, and to protect property values.5
3.
In drafting Section 10, the Department reviewed and borrowed certain
provisions from existing ordinances adopted by other nearby cities.6 Architectural

and engineering consultants were interviewed and presented the Department with
examples of how these stations can be camouflaged with architectural enclosures.7
Architectural controls and increased yard setbacks were incorporated into Section
10 in an effort to ensure compatibility with the community surrounding the
facilities and to maintain property values.8
4.
From December 2007 to April 2008 and over the course of several
meetings, the Development Committee reviewed and modified Section 10.9 In the
fall of 2007, the City and TMGS began negotiating various Section 10 requirements
because TMGS had indicated its desire to build a compressor station within the City
limits (the Barnes Compressor Station).10 Prior to July 1, 2008, TMGSs attorneys
and representatives attended numerous public hearings on Section 10 and
expressed TMGSs opinions regarding Section 10 to the City.11
Lasher Aff. 5, App.002.
Lasher Aff. 7, App. 003; AskChesapeake.com, October 3, 2008, www.askchesapeake.com/ENUS/NeighborhoodCenter/pages/Barnescompressorstation.aspx, App. 146.
10
11
Lasher Aff. 7, 9, 11, App. 003 and 004.

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5.
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On May 15, 2008, the Development Committee recommended that
Section 10 be considered by the Citys Planning and Zoning Commission (the P&Z
Commission).12 On June 23, 2008, the P&Z Commission considered Section 10 at a
public meeting and recommended that the City Council consider and adopt Section
10.13
6.
On July 1, 2008, the City Council considered and enacted Section 10 at
a public regular session meeting.14 At the meeting, the Mayor and the City Council
stressed the importance of enacting Section 10 but also recognized that Section 10
could be tweaked in the future if needed.15
7.
By enacting Section 10, the City is not attempting to prevent the
construction of compressor stations including the Barnes Compressor Station

within the City limits.16 The City only seeks to promote the construction of
compressor stations that fit with the aesthetics of the established zoning district to
ensure compatibility with the surrounding development and to maintain property
values.17 Section 10 does not apply in any way to pipeline activity below the
ground.18 The Citys sensitivity is with adjacent residential developments.19
12
13
14
15
Lasher Aff. 11, App. 004; Transcript, App. 011.
16
17
18
19

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Because the Barnes Compressor Station is proposed to be constructed in a

residential neighborhood, Section 10s requirements will apply.20
B.
The Citys Permitting Process.

8.
TMGS must obtain a variety of permits before it can build a
compressor station within the City limits of Grand Prairie.21 First, TMGS must
apply for a SUP by submitting an application with a proposed site plan, building
elevations, and landscape plans and pay an application fee totaling $1,000 plus $40
per acre.22 It typically takes 45 days for a SUP application to be evaluated and for a
SUP to be issued.23 It can take longer than 45 days, especially if the City has
concerns with the application or proposed structure that need to be resolved.24
Before a SUP will be issued, there must be a public hearing regarding the
application, and certain public notification requirements must be satisfied.25
9.
In assessing a SUP application under Section 10, the City considers
various factors, including:

a.
the location of the proposed construction and the zoning district

the property is in;
b.
whether the scale, position, height, and massing of the proposed

improvements are similar to the surrounding buildings; and
20
21
22
23
24
25

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c.
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whether approval of the request would help establish a unified,

master planned development scheme that is consistent with, or
does not detract from, the aesthetics of the surrounding area.26
10.
Section 10 is not designed to eliminate natural gas compressor stations
there is a flexible appeal process in place if a SUP application is denied.27 The

SUP applicant can submit an amended application addressing the concerns
identified by the City during the review of the previous application.28 If the SUP
applicant is not able to comply with certain provisions, the applicant may offer
compensatory provisions during this appeal process.29 For example, if an applicant
is unable to meet the setback requirement, the City may consider accepting a plan
that provides for more landscaping than is strictly required by Section 10.30
11.
To build a compressor station, TMGS must also submit (i) a proposed
plat, (ii) its Engineering Plan, which includes its requests for a Driveway Permit,
Clearing and Grubbing Permit, and Floodplain Permit, and (iii) request any
necessary building permits.31 Upon receipt of completed applications, issuance of
these permits usually takes two weeks per permit.32 The issuance process may be
delayed, however, if the City identifies a problem with the proposed plans.33
26
Lasher Aff. 14, App. 005-006.
27
Lasher Aff. 12, 15, App. 005-006; Transcript, App. 012.
28
29
30
31
Lasher Aff. 16-18, App. 006-007.
32
Lasher Aff. 17-18, App. 007.
33

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C.
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TMGS has not applied for a SUP under Section 10.

12.
TMGS has not complied with any of the Citys permitting procedures.34
13.
By letter dated April 2, 2008 (the April 2, 2008 Letter), TMGS
transmitted documents describing its plans to build the Barnes Compressor Station
to the City.35 TMGS did not, however, submit the required application to the City,
did not pay the required application fee, and did not submit a complete set of site,
building, and landscape plans.36 TMGS informed the City that the materials were
being submitted not as a formal application for a SUP but so that TMGS could get
the Citys reaction to the materials.37
14.
The City had concerns with the plans depicted in the April 2, 2008
Letter.38 First, the plans depicted a driveway constructed with a material other
than concrete.39 Second, the plans showed that the compressor station location did
not satisfy the proposed Section 10 minimum setback requirement.40 The City
continued to discuss the proposed plans with TMGS in an attempt to address the
Citys concerns.41 At no point in the process with TMGS has the City indicated that
it would not allow the construction of a compressor station.42
34
35
Lasher Aff. 20, App. 007-008; April 2, 2008 Letter, App. 052-053.
36
37
38
39
40
41
42

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After the July 1, 2008 enactment of Section 10, the City attempted to
resolve the remaining issues with TMGS, focusing on the location of the station and
the method by which the setback should be measured.43 Section 10 requires that
the Barnes Compressor Station be setback a minimum of 300 feet.44 The City
believes the setback should be measured from the perimeter of the station to the
property line of the subdivision.45 TMGS informed the City that it wants the
setback to be measured from the compressor station structure to the nearest
habitable structure.46 Using the Citys method of measurement, the proposed
station location is only set back 250 feet.47 Using TMGSs proposed method of
measurement, the proposed station location is set back approximately 300 feet.48 In
other words, TMGSs primary complaint revolves around a difference in Section 10s
interpretation of the setback requirement a difference of 50 feet.49
16.
TMGS agrees with the goals of Section 10. It advertises that the
Barnes Compressor Station will be quiet and non-invasive, will include

aesthetically-pleasing architectural features that will enhance and beautify the
outside appearance of the building and an existing natural buffer of more than 50
43
44
45
46
47
48
49

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feet of mature, densely, populated trees will provide a visual buffer for nearby
residential communities.50
D.
TMGS has not complied with any of the other permitting requirements.
17.
On June 23, 2008, City staff discovered that TMGS had broken ground
at the location where it plans to build the Barnes Compressor Station.51 TMGS had
not applied to the City for the permits required for building any structure
including a compressor station on the property, and the City had not issued the
required permits to TMGS for any construction.52
18.
Following the P&Z Commission meeting on the evening of June 23,
2008, the City informed Laura Jones a representative of TMGS that TMGS was
operating in or near a floodplain and discussed with her the need for TMGS to
acquire the necessary engineering and building permits before any additional
clearing or construction took place.53
19.
During the next two days, the City asked Ms. Jones about the status of
the construction again and she told the City that all construction efforts would be
shut down by 5:00 p.m. on June 26, 2008. 54
20.
On June 26, 2008, a representative of the City visited the site to see
what construction had already occurred.55 A crushed gravel driveway had been
AskChesapeake.com, October 3, 2008, www.askchesapeake.com/ENUS/NeighborhoodCenter/pages/Barnescompressorstation.aspx, App. 146 and 148.

50
51
Lasher Aff. 10, App. 004; Sherwin Aff. 4, App. 135.
52
53
Sherwin Aff. 5, App. 135.
54
55

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constructed and extended from the road to the pad site, the pad site had been
completely cleared of foliage, and various fill material had been used around the
site.56 Bulldozers and trucks were still present at the site and were in the process of
moving dirt on the site.57 TMGS had still not requested the required permits for
construction of any kind.58
21.
On July 12, 2008, TMGS submitted an incomplete set of plans followed
on July 19, 2008, with an incomplete application for a Floodplain Permit.59 This
original set of plans submitted by TMGS to the City only described the driveway to
the site.60 In addition, the Floodplain Permit application was for the driveway only
not for the entire site.61
22.
On several occasions in July 2008, the City informed Ms. Jones of the
deficiencies in TMGSs Floodplain Permit application and raised several concerns

regarding the site.62 Some of those concerns were:
A 48 inch reinforced concrete pipe discharges storm water from the

Trailwood Subdivision, which is immediately south of the site. This
outfall was constructed in the late 1970s and discharges into a channel
(the Tributary) which drains north, across the TMGS site, and into
Fish Creek.
TMGS had constructed a driveway across the Tributary. Since no

engineering plans were submitted prior to the construction of this
driveway, the Citys immediate concern was whether the driveway
56
57
58
59
60
61
62

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would obstruct flow from the Tributary and possibly flood neighboring
properties.
Another immediate concern was that the driveway could erode,

causing the debris to be carried into Fish Creek and affecting the
environmental balance of the riverine system.
Erosion control devices such as a silt fence, rock filter dams, and dust
abatement had not been installed properly. Without those devices in
place, sediment and debris from the exposed ground could be
transported to Fish Creek, potentially impacting the environmental
balance of the riverine system.63
23.
As a result of these and other concerns, the City requested that TMGS
take immediate steps to put erosion controls in place and to otherwise stabilize the
site.64
24.
In late July 2008 and again in late August 2008, TMGS resubmitted
revised applications for engineering permits.65 And on September 3, 2008, the City
received the most recent submission from TMGS.66
25.
These submissions from TMGS are still incomplete and do not satisfy
the Citys requirements for the issuance of Floodplain Permits and Clearing and
Grubbing Permits.67 For instance:
A headwall is an integral device necessary for the sites erosion control.

The most recent site plan provided to the City lacks details regarding
TMGSs plans, if any, for a headwall.
In addition, the current site plan does not show existing utilities. An
existing sanitary sewer line runs through the property and had
previously been exposed as a result of erosion over time. It is essential
63
Sherwin Aff. 9, App. 136-137.
64
65
66
67

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that this line and other utilities be marked on the site plan so that
they are not exposed or damaged during the construction.
26.
The site plan does not provide the details regarding the driveway. Offsite drainage has not been accounted for and the routing of this water
across the driveway was not analyzed. This could potentially create a
hazardous condition on Matthew Road if the off-site drainage is rerouted onto Matthew Road because of the obstruction caused by
driveway. The City also has a standard detail for the driveway
approach which was not constructed. No written request for a
variance was submitted to the City Engineer.
There is only one entrance and exit driveway for the site. The
elevation at this site is approximately 498 feet while the Base Flood
Elevation is approximately 503 feet at this location. This means that
the driveway sits several feet below the floodplain. In the event of a
flood, emergency vehicles and private vehicles would be unable to
access or exit the site. Until an alternate location for the driveway is
established, the City cannot approve the Floodplain Permit
application.
TMGS has not paid its application fee for the Floodplain Permit and
has only submitted part of the Floodplain Permit application.
TMGS did not provide the City with an updated Clearing and
Grubbing Permit application with its most recent set of site plans. 68
The City has not denied TMGSs applications for the Clearing and
Grubbing or Floodplain Permits. However, the City cannot issue a Clearing and
Grubbing or Floodplain Permit until TMGS resolves these and other issues with its
site plan and applications.69
27.
The Building Inspections Department has no record of an application
for a permit for a Compressor Station or a Driveway at the TMGS site.70
68
69
70

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TMGS has not received required federal permits.

28.
In addition, under the Citys Unified Development Code, the City
cannot issue a Floodplain Permit until TMGS obtains all other necessary state and
federal Floodplain Permits.71 Because of the Barnes Compressor Stations location
and impact on the Tributary and Fish Creek, TMGS will be required to obtain a
permit from the US Army Corps of Engineers (USACE) or additional
environmental analysis showing that such a permit is not required.72 Until the City
receives a copy of the USACE permit issued to TMGS for the Barnes Compressor
Station, the City will not be able to issue a Floodplain Permit.73
F.
TMGSs Misleading Public Relations Campaign.

29.
In advance of TMGSs filing of this lawsuit, it launched a public
relations campaign against the City. Amongst its many missiles, TMGS and
Chesapeake:
Posted information on AskChesapeake.com alleging that the City has

refused to issue necessary permits to TMGS and that the City was
attempting to block the use of this land for its intended purpose.74
Chesapeake also sent letters to residents with leases with Chesapeake

again alleging that the City was attempting to block the use of this
land for its intended purpose and that TMGS has filed suit asking
the court to allow TMGS to build the compressor station.75
Chesapeakes letter is doubly misleading because it also attributes any
and all delays in royalty payments to the Citys actions as opposed to
71
72
73
AskChesapeake.com, October 3, 2008, www.askchesapeake.com/ENUS/NeighborhoodCenter/pages/Barnescompressorstation.aspx, App. 145.

74
75
September 30, 2008 Letter, App. 131-132.

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TMGSs ignorance of, or outright refusal to follow, the Citys

permitting process for the construction of any structures.
III.
ARGUMENTS AND AUTHORITIES
A.
Because there is no justiciable case or controversy and TMGS has alleged

no cognizable injury, the Court lacks subject matter jurisdiction.
To be justiciable, all cases filed in federal court require a case or controversy
that is ripe for judicial determination.76 A pre-enforcement challenge is generally

ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if
further factual development is required.77 Similarly, a claim should be dismissed
as unripe where it rests on contingent future events that may not occur as
anticipated, or indeed may not occur at all.78 The court lacks subject matter
jurisdiction to adjudicate unripe claims.79
The claims alleged by TMGS are not ripe, and this Court should dismiss
TMGSs claims for lack of subject matter jurisdiction. TMGS has not demonstrated
to this Court that:
1.
the Barnes Compressor Station does not comply with Section 10;
2.
if the Barnes Compressor Station does not comply, the City will not
work with TMGS; or

3.
TMGS has obtained or applied for permits which are required before
construction of any structure. In addition to the Special Use Permit required (and
76
See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937).
77
Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003).
78
Texas v. United States, 523 U.S. 296, 300 (1998).
79
Urban Developers LLC v. City of Jackson, 468 F.3d 281, 292 (5th Cir. 2006)

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not applied for) under Section 10, TMGS must submit:

o A proposed plat, which must be approved;
o An engineering plan, which includes applications for:
A Driveway Permit;
A Cleaning and Grubbing Permit; and
A Floodplain Permit.80
TMGS has not submitted these items or obtained these necessary permits, which it
must obtain regardless of whether Section 10 applies to the Barnes Compressor
Station.81
4.
the necessary permit under Section 10 would be denied, or that the
permitting process would result in any delay. Any alleged injury resulting from the
enforcement of Section 10 rests only on speculation that TMGS will submit all of
these materials and that it will be denied the necessary permits.
The existence and extent of Section 10s alleged interference with the Barnes
Compressor Station simply cannot be assessed until the permitting process has run
its course.82 In Monk, adjoining landowners filed a suit to enjoin TCEQ officials
from considering a landfill permit application.83 The district court granted the
requested injunction, but the Fifth Circuit vacated the injunction, holding that the
matter was not ripe for adjudication. The court concluded that the plaintiffs would
not suffer any deprivation unless the permit was granted, and the permitting
80
81
Lasher Aff. 19, App. 007; Sherwin Aff. 12-14, App. 137-139.
82
83
Monk v. Huston, 340 F.3d 279 (5th Cir. 2003).

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process had not yet run its course.84 Thus, the dispute was not ripe for judicial
review until TCEQ actually issued the permit.85
Similar facts exist here, TMGS has not complied with any of the Citys
permitting procedures.86 Most significantly, the City has pointed out significant
deficiencies in TMGSs floodplain plan and TMGS is required to submit federal
permits before the City will consider the floodplain permit application.87 This
dispute is not ripe because the Citys permitting process has not yet run its course.
An injunction issued by this Court would have the same effect. TMGS has
centered its pleadings on what might happen should the City deny TMGS the right
to complete the compressor facility.88 Because TMGS could only suffer injury, if at
all, if a number of contingencies occur, this case is not ripe for adjudication.89
Finally, as the Fifth Circuit has noted in a similar context, the City may
amend Section 10 or repeal it in its entirety before it ever affects TMGS.90 Indeed,
possible amendment was discussed at the July 1, 2008 City Council meeting where
84
Id. at 283.
Id. (holding that until the TCEQ issues the permit, this dispute remains abstract and
hypothetical); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 587
(5th Cir. 1987) (Had the district court granted the injunction as requested, the result would have
been an order hanging in the air, ready to become effective only if the New Orleans City Council
took one of several possible future actions.).
85
86
87
See Section II, supra, 21-28.
Plaintiffs Original Complaint (Compl.) 5.14; Plaintiffs Application for Temporary Restraining
Order and Preliminary Injunction (Application), p. 14.
88
This analysis applies to TMGSs standing to raise its claims as well. The standing and ripeness
doctrines often overlap in practice, particularly in an examination of whether a plaintiff has
suffered a concrete injury, and . . . injury-in-fact analysis draws on precedent for both doctrines.
Texas v. United States, 497 F.3d 491, 496 (5th Cir. 2007) (citation omitted).
89
90
United Trans. Union v. Foster, 205 F.3d 851, 858 (5th Cir. 2000).

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Mayor Charles England suggested passing Section 10 understanding that there

could be some tweaking that needs to be done later and the council could certain
[sic] do that if they so desire of [sic] if the applicant desired to ask for some revisions
we could certainly consider that.91 The City Council has also recognized that if an
applicant cannot comply with Section 10s provisions, it can offer compensatory
provisions during the appeal process.92 Simply put, TMGSs challenge sits atop a
mountain of conjecture and speculation and is not ripe for adjucation.93
B.
TMGS has failed to satisfy its burden of establishing that it is entitled to

injunctive relief.
The purpose of a preliminary injunction is to preserve the status quo pending
a determination of the merits.94 A preliminary injunction is an extraordinary

equitable remedy, and should not be granted lightly.95 A plaintiff seeking this
extraordinary remedy must establish four elements: (1) a substantial likelihood of
success on the merits; (2) a substantial threat that the movant will suffer
irreparable injury if the injunction is denied; (3) that the threatened injury
outweighs any damage that the injunction might cause the defendant; and (4) that
the injunction will not disserve the public interest.96 For an injunction to issue, the
91
Transcript, App 011.
92
93
United Trans. Union, 205 F.3d at 858.
94
University of Texas v. Camenish, 451 U.S. 390, 395 (1981).
95
See Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 917 (5th Cir. 2000).
Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998).

96
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applicant must clearly carr[y] the burden of persuasion on all four requirements.97
TMGS has not satisfied and cannot satisfy its burden for any of these factors.
1.
TMGS cannot establish a likelihood that it will prevail on the merits of

any of its claims.
a.
TMGS cannot establish a likelihood of success on the merits

because the PSA and Texas state law do NOT preempt Section
10.
As TMGS recognizes, the PSA and state law preempt only safety
regulations.98 But TMGS glosses over this critical component of its preemption
claim in its analysis of Section 10. Section 10s language demonstrates that its
purposes relate to general aesthetics and community enhancement. Thus, TMGS
has no chance, much less a significant likelihood, of succeeding on the merits of its
preemption claim.
i.
TMGS repeatedly admits that only safety regulations are

preempted.
The PSA preempts only state and local regulation of pipeline safety, which is
not addressed in Section 10. Accordingly, preemption does not apply to this case.
Courts have identified two categories of preemptionexpress and implied.99
Express preemption applies when Congress explicitly states its intention to preempt
state law.100 Implied preemption may be further divided into conflict preemption
97
Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).
See Compl. 5.2 (alleging that Section 10 is preempted because it is a standard intended to
regulate pipeline facility safety); Plaintiffs Brief in Support of its Application for Temporary
Restraining Order and Preliminary Injunction (Pl.s Br.) at 5 (The PSA exclusively regulates
safety standards . . . .); id. at 6 ([T]he scope of the PSA encompasses safety standards applicable to
compressor stations.).
98
99
Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 333 (5th Cir. 2007).
100
Id.

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(which exists where a state or local regulation conflicts with a federal statute) and
field preemption (which is found where Congress intended to occupy a field
exclusively).101
In the area of natural gas, Congress has expressly preempted the
establishment of safety standards for interstate pipeline facilities or interstate
pipeline transportation.102 Similarly, the Texas Utilities Code gives the Texas
Railroad Commission (RRC) exclusive jurisdiction over safety standard[s] and
practice[s] applicable to intrastate pipeline facilities and intrastate gas
transportation.103 In fact, the Utilities Code specifically acknowledges that
municipalities retain their traditional jurisdiction to regulate natural gas pipelines
and facilities.104 Thus, safety standardsand only safety standardsare expressly
preempted under federal or state law.
Implied preemption does not apply in this case, and TMGS does not seriously
argue otherwise. First, TMGS does not contend that Section 10 conflicts in any way
with either the PSA or the Texas Utilities Code, so conflict preemption is not in
dispute. Although TMGS cryptically argues field preemptionthat the PSA
implicitly preempts any regulation that could apply in any way to a compressor
stationthis argument merits little consideration.105 Field preemption requires a
101
Id. at 334.
102
49 U.S.C. 60104(c) (emphasis added).
103
TEX. UTIL. CODE 121.201(b)(2) (emphasis added).
104
Id. 121.202(b).
105
See Pl.s Br. at 8-10.

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clear Congressional intent,106 which is absent here. In fact, Congress enactment

of a provision defining the pre-emptive reach of a statute implies that matters
beyond that reach are not pre-empted.107 TMGS cannot use implied preemption to
make express preemption broader.
The authorities TMGS relies on deal with expressly-preempted safety
regulations, and thus do not aid TMGSs field preemption argument.108 Even these
cases recognize that local zoning ordinances may affect interstate gas pipelines if
they relate to a different subject (i.e., other than safety) or merely have an
incidental effect on the pipeline.109 Moreover, the preemption count of TMGSs
106
Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 334 (5th Cir. 2007).
Id. (quotation omitted); see Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 61617 (1997) (noting that field pre-emption is itself suspect, at least as applied in the absence of a
congressional command that a particular field be pre-empted and that the Courts recent cases
have frequently rejected field pre-emption in the absence of statutory language expressly requiring
it); Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992) (When Congress has considered the issue
of pre-emption and has included in the enacted legislation a provision explicitly addressing that
issue, and when that provision provides a reliable indicium of congressional intent with respect to
state authority, there is no need to infer congressional intent to pre-empt state laws from the
substantive provisions of the legislation. (quotations and citation omitted)).
107
See Kinley Corp. v. Iowa Utils. Bd., 999 F.2d 354, 359 (8th Cir. 1993) (discussing express
preemption of safety regulations); ANR Pipeline Co. v. Iowa St. Commerce Commn, 828 F.2d 465,
468 (8th Cir. 1987) (In the NGPSA, Congress expressly has preempted state regulation of safety in
connection with interstate gas pipelines . . . .); Natural Gas Pipeline Co. of Am. v. Railroad Commn
of Tex. 679 F.2d 51, 53 (5th Cir. 1982) (noting that Section 1672(a)(1) expressly prohibits state
adoption or enforcement of safety standards); Kern River Gas Trans. Co. v. Clark Cty, Nev., 757 F.
Supp. 1110, 1115 (D. Nev. 1990) (Defendants cannot require the Plaintiff to meet additional safety
standards as a prerequisite to applying for other appropriate permits.); Northern Border Pipeline
Co. v. Jackson Cty, MN, 512 F. Supp. 1261, 1264 (D. Minn. 1981) ([T]he provisions and legislative
history of the Natural Gas Pipeline Safety Act indicate quite clearly that federal legislation has
preempted the entire field of gas pipeline safety.); United Gas Pipeline Co. v. Terrbonne Parish
Police Jury, 319 F. Supp. 1138, 1140 (E.D. La. 1970) (noting that Congress . . . intended by the
Natural Gas Pipeline Safety Act of 1968 to give exclusive jurisdiction to the Department of
Transportation to regulate the safety of interstate transmission facilities and Congress intended
to avoid dual safety regulation of interstate transmission facilities) (emphasis supplied in all).
108
ANR Pipeline, 828 F.2d at 471 (The Supreme Court has recently held that even where federal
law preempts state regulation of certain activities in a given field, state regulation of distinct
activities in that field is permissible where the state regulation does not conflict with the federal
law.); Kern River, 757 F. Supp. at 1115 (Some permits which do not target concerns already
exhaustively reached by the Natural Gas Act may properly be the subject of County and City action.
Page 21
109
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Complaint alleges only express preemption.110 Because the preemptive reach of the
PSA is limited to pipeline-safety regulations, and because, as discussed below,
Section 10 does not address pipeline safety, TMGS cannot win on the merits.
ii.
Section 10 is NOT preempted because it is not a safety

regulation.
Section 10 was drafted to ensure the compatibility of compressor stations

with the surrounding development and to protect property values through
specification of the aesthetics, location, and noise level of the station.111 In short,
Section 10 prevents eyesores. For instance, building facades facing the public must
be constructed with brick or stone accents, and the roof must have at least a 5:12
pitch and must include at least one raised structure in the form, such as a cupola or
steeple tower.112 The architectural design must be compatible with the visual
context of the surrounding development.113 Similarly, a fence, constructed of
wrought iron with brick or stone columns at 50 foot centers for any portions along
public streets, must encompass the site.114 And the compressor-station site must be
landscaped in a manner that is compatible with the environment and the existing
surrounding area.115
. . .); Algonquin Lng v. Loqua, 79 F. Supp. 2d 49, 50, 53-54 (D.R.I. 2000); Northern Border, 512 F.
Supp. at 1265.
Compl. 5.2 (Section 10 is a standard intended to regulate pipeline facility safety . . . .
Accordingly, Section 10 is preempted by federal law.).
110
111
Lasher Aff. 4-6, 12, App. 002-003, 005; Transcript, App. 011.
112
UDC 4.10.4(B)-(C).
113
Id. 4.10.4(E).
114
Id. 4.10.3.
115
Id. 4.10.6.

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Section 10s provisions related to location and noise level also serve to protect
property values and minimize the stations impact on City residents.116 For
example, a 300-foot setback is required for residential districts; a 200-foot setback is
required for retail and commercial districts; a 100-foot setback is required for light
industrial districts; and only a 50-foot setback is required for heavy industrial
districts.117 Exterior noise level must not exceed the pre-development ambient
noise levels.118 Section 10 emphasizes compatibility with the community
surrounding the compressor station and maintenance of property values.119 Even
TMGS agrees with the Citys goals. TMGSs website advertises that compressor
stations can be quiet and non-invasive.120 TMGS states that the Barnes
Compressor Station will include aesthetically-pleasing architectural features that
will enhance and beautify the outside appearance of the building and an existing
natural buffer of more than 50 feet of mature, densely populated trees will provide a
visual buffer for nearby residential communities.121
Section 10 and the PSA in some way regulate compressor stations, but that
does not transform Section 10 into a safety regulation. TMGSs argument that
Section 10 is a safety regulation because its provisions in some way impact the
116
Lasher Aff. 4-6, 12, App. 002-003, 005.
117
UDC 4.2.10(A).
118
Id. 4.10.5.
119
Lasher Aff. 4-6, 12, App. 002-003, 005.

120
121
Id., App. 148.

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design and construction of compressor stations122 is nothing more than a field

preemption argument clothed in express preemption garb. TMGS uses broad and
generic categoriessuch as design and constructionin an effort to
manufacture overlap between Section 10 and the PSA.123 As demonstrated above,
implied field preemption does not apply in this case, and TMGSs re-clothed field
preemption argument falls short.
b.
Section 10 does not usurp TMGSs alleged eminent domain

power and, even if it did, the Citys interest in Section 10 is
superior to TMGSs.
TMGS will not succeed on the merits of its eminent domain claim because (1)
eminent domain is irrelevant under the facts alleged, and (2) the Citys interest in
Section 10 is superior to TMGSs eminent domain power. Eminent domain is
irrelevant under the facts alleged because (i) the proposed Barnes Compressor
Station is to be constructed on property owned by TMGS and (ii) Section 10 neither
condemns TMGSs Property nor prevents TMGS from condemning property
required for its compressor station. Pursuant to Section 181.004 of the Texas
Utilities Code, TMGS has eminent domain power to enter on, condemn, and
appropriate the land, right-of-way, easement, or other property of any person or
corporation. In this case, TMGS is neither entering, condemning, nor
appropriating any land.
122
Pl.s Br. at 7 (emphasis added).
Id. Similarly, and bizarrely, TMGS also argues that both the PSA and Section 10 regulate the
location of compressor stations. Id. This argument is ironic, since the PSA expressly prohibits the
Secretary from prescribing the location of a pipeline facility. 49 U.S.C. 60104(e).
123

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TMGSs eminent-domain power does not exempt it from valid zoning

ordinances affecting its own property. Texas courts have held that a general grant
of eminent domain power does not expressly bestow the right to select the precise
location of necessary facilities.124 Instead, a facilitys precise location may be
subject to valid zoning ordinances, such as Section 10.125 TMGSs true complaint
about Section 10 lies in its desire to select the precise location of the compressor:
Ron Jensen,
City Council
Jeb Loveless,
attorney for
TMGS
Mayor, Charles
England
Jeb Loveless,
attorney for
TMGS
Mayor, Charles
England
Jeb Loveless,
attorney for
TMGS
124
Mayor, I do have a question. This is a real big point. Do you

think youll ever agree that we have the right to tell you where
you can or cannot go? Listening to your testimony, I dont
think you will agree with that statement. I think thats the
logging jam? Youll agree to articulation, youll agree to brick
youll agree to gravel or cement but the basic dilemma as I see
it is you disagree that we have the right to tell you that you can
or cannot put it at a particular location. Can you answer that
for me?
Yes. I think youre right.126
Let me make sure I understood what you told Councilman

Jensen that you really dont see it being on the table to change
the location.
I didnt say that we wouldnt work with the City on the location
but I do agree that we have the right to determine the location
but we have the right to agree on the location also.
Okay. Im not sure thats. Youre saying that you have the
right to locate what weve been talking about period. You think
you have that right.
Yes, because I said that at the outset that if its eminent
domain we have that right.127
Porter v. Southwestern Pub. Serv. Co., 489 S.W.2d 361, 363 (Tex. Civ. App.Amarillo 1972, writ
refd n.r.e.) (emphasis added).

125
See Porter, 489 S.W.2d at 362 (an entitys eminent domain power is subject to a citys valid zoning
ordinance).
126
Transcript, App. 019.
Transcript, App. 020.

127
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A city does not usurp the eminent domain authority . . . by requiring [a

condemnor] to meet certain standards any more than it usurps the control and
management of individuals over their property and affairs by making them meet
the same standards.128 The Court should require TMGS to abide by the Citys
zoning ordinances just as any other landowner. Allowing otherwise would
contravene Texas law and would undermine the Citys valid regulatory scheme.
Even if eminent domain were relevant to the inquiry, the Citys interest in
Section 10 is superior to TMGSs eminent domain power. TMGS suggests, without
supporting authority, that Texas law gives an entity with eminent domain power
the right to select the location of its pipeline facilities, including a compressor
station.129 However, TMGSs authorities do not support its claims.130 The Court
should find that TMGS cannot succeed on its eminent-domain claim because its
power of eminent domain is subject to the Citys valid zoning ordinances.
c.
Section 10 does not violate the Dormant Commerce Clause.
Section 10, addressing aesthetics, noise control, and zoning, is not the kind of
in-state economic protectionism prohibited by the dormant Commerce Clause. The
Constitutions Commerce Clause prohibits states from engaging in economic
128
Porter, 489 S.W.2d at 365.
129
Pl.s Br. at 10-11.
TMGS relies on City of Lubbock v. Austin and Austin Independent School District v. City of
Sunset Valley, but neither provides support for TMGSs eminent domain argument. In City of
Lubbock, the court merely held that a city is not bound by its own zoning ordinances when exercising
its eminent domain powers. In Austin Independent School District, the court narrowly held that a
130
city may not utilize its zoning power to wholly exclude from its boundaries proposed school facilities
that are reasonably located. These cases are irrelevant to TMGSs argument.

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protectionism by preferring local interests over out-of-state interests.131 If the

ordinance in question is neutral (that is, it does not affirmatively discriminate
against out-of-state actors), a party mounting a Commerce Clause challenge must
demonstrate that the ordinance imposes a burden on interstate commerce that is
clearly excessive in relation to the putative local benefits.132 The dormant
Commerce Clause . . . is a fairly blunt instrument; and absent discrimination,
courts may reasonably insist on a fairly clear showing of undue burden before
holding unconstitutional a traditional example of local regulation.133 TMGSs
challengerelying on compounded innuendo and what-if scenariosfalls well
short.
According to TMGS, Section 10, with its discretionary permitting process
and design and construction requirements, places an excessive burden on interstate
commerce by threatening to raise the cost of construction of the compressor station
and to significantly delay, if not wholly prevent, any pipeline company from
constructing an essential part of its natural gas pipeline facility.134 This argument
is both inaccurate and insufficient.
First, TMGS offers no evidence that any pipeline company, other than it, will
be burdened by any of the requirements in Section 10 (and, interestingly, TMGS
131
West Lynn Creamery, Inc., v. Healy, 512 U.S. 186, 192 (1994); Intl Truck & Engine Corp. v. Bray,
372 F.3d 717, 725 (5th Cir. 2004).
Tex. Manufactured Housing Assn v. City of Nederland, 101 F.3d 1095, 1101 (5th Cir. 1996)
(affirming summary judgment in favor of city against Commerce Clause challenge where citys
ordinance barred trailer coach housing in most areas).
132
133
New Hampshire Motor Trans. Assn v. Plaistow, 67 F.3d 326, 333 (1st Cir. 1995).
134
Pl.s Br. at 12.

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offers no allegation or evidence that its own pipeline system will traverse state
lines). Nor does TMGS explain how the requirements of Section 10 will increase
costs or significantly delay, if not wholly prevent, any pipeline company from
constructing an essential part of its natural gas facility.135 Because TMGS, which
bears the burden of producing evidence,136 has failed to offer any support for its bald
assertions, its argument must be rejected.
Even if TMGS had adduced relevant evidence, its dormant Commerce Clause
challenge would nevertheless fail as a matter of law. The challenge rests on the oftrejected ripple theoryif the ordinance is allowed to stand, it will increase costs,
will impede the delivery of natural gas (both in state and out of state), and will
make natural gas more expensive for consumers everywhere. But the dormant
Commerce Clause doctrine is concerned with state protectionism of in-state
business interests, and laws that impose the same burden on in-state and out-ofstate business interests usually do not violate the Commerce Clause.137 Similarly,
regulations do not run afoul of the dormant Commerce Clause simply because they
result in consumer price increases.138 Under TMGSs flawed argument, no city
TMGS has not even allegedmuch less offered evidencethat the City would arbitrarily deny
permits to it and to all other entities looking to build a compression station, so as to delay, if not
wholly prevent, any pipeline company from constructing an essential part of its natural gas facility.
135
136 See Nichols, 532 F.3d at 372 (noting that a plaintiff must clearly carry the burden of persuasion
in order to obtain a preliminary injunction).
See, e.g., Minn. v. Clover Leaf Creamery Co., 449 U.S. 456, 473 & n.17 (1981) (upholding
regulation regarding milk containers and focusing on equal burden to in-state and out-of-state
businesses); Nederland, 101 F.3d at 1104 (finding no constitutional infirmity in challenged law
because plaintiffs failed to demonstrate that housing built in lieu of prohibited housing would be
provided by in-state suppliers).
137
138 Exxon Corp. v. Governor of Md., 437 U.S. 117, 127-28 (1978) (upholding Maryland statute
prohibiting oil refiners from operating retail gas stations and noting that an argument directed to
increased prices relates to the wisdom of the statute, not to its burden on commerce); Intl Truck,
Page 28
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zoning ordinance could ever be applied to any national supplier or distributor,

because any increased difficulty or cost to the supplier would ultimately affect
interstate consumers.
In Wood Marine Service, Inc. v. Harahan,139 the Fifth Circuit rejected
TMGSs theory. In Wood Marine, the city of Harahan passed an ordinance that
prevented Wood Marine from developing batture land that it owned, which in turn
prevented Wood Marine from constructing its planned facility for loading and
unloading cargo transported on the Mississippi River. The district court found that
Harahans ordinance violated the dormant Commerce Clause, but the Fifth Circuit
reversed, holding that the ordinance did not impermissibly burden interstate
commerce:
The sole demonstrated effect of the zoning is that Wood Marine will
not be able to discharge crushed limestone and other construction
materials at its Harahan facility. . . . [This] does not establish the
existence of a burden upon interstate commerce.140
As in Harahan, TMGS has demonstrated, at most, that Section 10 will burden it.
But TMGS incorrectly assumes that a burden on it equates to a burden on
interstate commercethe very assumption that the Fifth Circuit rejected in
Harahan.141
Even if Section 10 incidentally burdened interstate commerce, any incidental
burden would not be clearly excessive in light of the obvious legitimate functions
372 F.3d at 726 (noting that a regulations effects such as price increases or disruption of market
equilibrium speak to the wisdom of the statute, not to its constitutionality under the dormant
Commerce Clause).
139
858 F.2d 1061 (5th Cir. 1988).
140
Wood Marine Service, Inc. v. Harahan, 858 F.2d 1061, 1065 (5th Cir. 1988).
141
Id.

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of the ordinance.142 As described above, Section 10 works to, among other things,
maintain property values, avoid the undue crowding of land or overpopulation or
diffusion of industry; provide for the most efficient design and layout of the land;
and preserve the integrity and aesthetic quality of the community.143 These are all
indisputably legitimate governmental interests.144
Simply put, local governments are not . . . prohibited from regulating
matters of legitimate local concern, such as zoning, even though such regulation
may affect interstate commerce.145 TMGS has failed to demonstrate that Section
10 burdens interstate commerce at all, much less that any such burden is clearly
excessive given the legitimate local interests at issue. Thus, TMGS has not shown
that it is likely to win on the merits of its claim, and its request for injunctive relief
should be denied.
2.
TMGS has not shown and cannot show ANY of the prerequisites for
injunctive relief.
TMGS cannot meet the stringent requirements for a preliminary injunction.

The purpose of a preliminary injunction is to prevent irreparable injury so as to
preserve the courts ability to render a meaningful decision on the merits.146 In
142
See id. at 1066 (Zoning is a legislative function entitled to great deference.).
143
See supra, I.A.2; Lasher Aff. 4-5 App. 002.
See Nederland, 101 F.3d 1095, 1104 (5th Cir. 1996) (Maintenance of property values has long
been recognized as a legitimate objective of local land use regulation.); Tex. Manufactured Hous.
Assn v. City of La Porte, 974 F. Supp. 602, 613 (S.D. Tex. 1996) (discussing maintenance of property
values); City of Cleveland v. City of Brook Park, 893 F. Supp. 742 (N.D. Ohio 1995) (discussing noise
regulation); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1226 (N.D. Ga. 1992) (discussing
legitimacy of preserving residential neighborhoods, avoiding blight, and reducing noise and traffic).
144
145
Guschke v. Oklahoma City, 763 F.2d 379, 384 (10th Cir. 1985).
Justin Indus., Inc. v. Choctaw Securities, L.P., 920 F.2d 262, 269 (5th Cir. 1990) (citing Canal
Auth. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)).
146

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this case, the Courts issuance of the preliminary injunction requested by TMGS
would effectively negate the Courts ability to issue a decision on the merits. If the
Court prohibits the City from enforcing Section 10 and TMGS constructs a
compressor station that does not comply with Section 10, there will be nothing left
for this Court to decide. The issuance of the permanent injunction will
fundamentally alter the status quo.
TMGS cannot prevail on the merits, but it also cannot clearly establish any of
the three other elements of injunctive relief(1) that it will suffer irreparable
injury without an injunction; (2) that TMGSs injury outweighs the Citys injury if
an injunction issues; and (3) that the injunction will not disserve the public interest.
TMGS argues that a constitutional claim or a preemption claim never require a
showing of these elements.147 Even in the cases cited by TMGS, the courts analyzed
all four requirements for injunctive relief,148 and an analysis of all four elements is
appropriate here.
Pl.s Br. at 14 (citing VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006); Doe v.
Duncanville Indep. Sch. Dist., 994 F.2d 160, 166 (5th Cir. 1993); Villas at Parkside Partners v. City
of Farmers Branch, 469 F. Supp. 2d 757 (N.D. Tex. 2007)).
147
See Villas, 469 F. Supp. 2d at 776 (reviewing evidence supporting finding of irreparable harm);
Doe, 994 F.2d at 166 (holding only that district court did not abuse its discretion in finding
148
irreparable harm where school district violated the Establishment Clause of the Constitution). In
addition, both VRC and the case that it relied upon, Trans World Airlines, Inc. v. Mattox, 897 F.2d
773, 784 (5th Cir. 1990), involved permanent, rather than preliminary, injunctions. See N.Y. State
Rest. Assn v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 368 (S.D.N.Y. 2008) (These cases
addressed the question of irreparable harm in the context of a permanent injunction, after the
appellate court had found that the state law at issue was clearly preempted by federal law. Thus,
these cases stand only for the proposition that when there is a very high likelihood of success on the
merits of the preemption claim, little or no additional showing with respect to the other three factors
is necessary.).
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TMGS has failed to demonstrate that it will suffer irreparable

harm in the absence of an injunction.
TMGS has not shown and cannot show any immediate and irreparable harm
if Section 10 is enforced. Absent a showing of imminent circumstances that warrant
a preliminary injunction pending a trial on the merits, an injunction is
inappropriate.149 By its own conduct, TMGS has significantly delayed its
application for an injunction. As this Court has recognized:
[D]elay in seeking a remedy is an important factor bearing on the need
for a preliminary injunction. Absent a good explanation, a substantial
period of delay militates against the issuance of a preliminary
injunction by demonstrating that there is no apparent urgency to the
request for injunctive relief. Evidence of an undue delay in bringing
suit may be sufficient to rebut the presumption of irreparable harm.150
TMGS admits it has negotiated with the City for more than a year on the
requirements of Section 10.151 Without applying for any permits or even giving
notice to the City, TMGS broke ground on the Barnes Compressor Station on or
before June 23, 2008.152 Section 10 was enacted on July 1, 2008.153 Even after the
current version of Section 10 went into effect, TMGS waited three monthsuntil
September 30, 2008to seek court intervention. Courts have repeatedly denied
preliminary injunctions in cases with similar delays.154 TMGSs own delay
149
Hoover, 164 F.3d at 224.
150
Wireless Agents, L.L.C. v. T-Mobile USA, Inc., 2006 WL 1540587, *3 (N.D.Tex. June 6, 2006)
(Fitzwater, J.) (citations omitted).

151
152
153
154 Tough Traveler, Ltd. v. Outbound Prod., 60 F.3d 964, 968 (2d Cir. 1995) (vacating preliminary
injunction where movant waited four months to seek a preliminary injunction after filing suit);
Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (ten-week delay in seeking injunction
Page 32
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contradicts its claim of immediate and irreparable harm in the absence of an

injunction.155
In order to be irreparable, TMGSs injury must be imminent and it cannot be
speculative.156 As noted above, TMGS has not shown that it has submitted
necessary permit applications to the City.157 TMGS has also not made any showing
that Section 10 is actually delaying its plans. TMGSs claimed injury is not
imminent.
Moreover, any harm to TMGS is fully compensable in money damages. First,
TMGSs alleged harm will include complying with the aesthetic requirements of
Section 10 and the economic costs of such compliance. Or alternatively, TMGSs
harm could be a delay in constructing the Barnes Compressor Station and a
possible delay in moving its gas to market.158 Either way, TMGSs only potential
injury is economic damagesthe antithesis of irreparable harm.159 TMGS argues
that the instability of the national financial markets, the ever fluctuating natural
gas prices and the uncertainty as to the exact amount of natural gas production
make it impossible to determine damages. TMGS confuses a potential inability to
for trademark infringement undercut claim of irreparable harm); GoNannies, Inc. v. GoAuPair.com,
Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006) (five-month delay in applying for injunctive relief
rebutted any presumption of irreparable harm).
155
Wireless Agents, L.L.C., 2006 WL 1540587 at *3.
156 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992); Watson v. Fed. Emergency Mgmt.
Agency, 437 F. Supp. 2d 638, 648 (S.D.Tex. 2006) vacated at 2006 U.S. App. LEXIS 29382 (5th Cir.
Sept. 6, 2006).
157
The City assumes, for purposes of this section, that TMGS is somehow capable of succeeding on
the merits.
158
Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (An injury
is irreparable only if it cannot be undone through monetary remedies.).
159

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correctly anticipate damages in advance with the issue at handwhether TMGS

could be made whole by economic damages at trial. As the Fifth Circuit has noted,
[t]he key word in this consideration is irreparable. Mere injuries, however
substantial, in terms of money, time and energy necessarily expended in the
absence of a stay, are not enough. The possibility that adequate compensatory or
other corrective relief will be available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of irreparable harm.160
Although harm may be considered irreparable where its calculation will be
especially difficult or speculative, TMGS does not meet this standard.161 The only
evidence in support of TMGSs argumentthe Declaration of Kent Wilkinson
states in a conclusory fashion that damages would be impossible to calculate. Mr.
Wilkinson states that enforcement of Section 10 will prevent TMGS from timely
meeting its commitments in the natural gas market by causing it to have to redesign a new pipeline plan.162 Mr. Wilkinson does not, however, identify any of
these alleged commitments or explain how the enforcement of Section 10 would
interfere with those. Moreover, this is exactly the type of injury for which monetary
damages would provide complete redress. TMGS has not established that it will
suffer any irreparable harm.
Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975) (quoting Virginia Petroleum Jobbers
Association v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)) (emphasis in original).
160
161
Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 810 n.1 (5th Cir. 1989).
162
Wilkinson Decl. 14.

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A preliminary injunction will disserve the public and injure the

City.
The City has a great interest in protecting property values and aesthetics in
the city limits. Because the City is a political subdivision, any injury to its
residentsor anything that makes the City less attractive to potential residents
injures the City. Thus, the Citys interest is aligned with that of its residents.
As discussed above, Section 10which focuses on aesthetics and the
preservation of property valuesprotects the interests of all City residents. If the
City were enjoined from enforcing Section 10, TMGS could erect a Compressor
Station that detracts from the Citys appearance, decreases property values, and
creates a nuisance for City residents in terms of noise and appearance. TMGS, on
the other hand, has not shown that anyone other than it is concerned with its
ability to construct the Barnes Compressor Station that complies with the aesthetic
requirements of Section 10.
A preliminary injunction will also disserve the public interest because it will
foreclose public hearing and discussion on any proposed compressor station. The
SUP process includes public hearing and notification requirements.163 The public
interest will be severely injured if Section 10 and the SUP process is enjoined by
this Court.
On balance, an injunction would disserve the public interest, and any injury
to TMGS without an injunction is outweighed by the injury that the City would

163
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suffer if an injunction were entered. TMGS has not clearly established the
requirements for a preliminary injunction, and its request should be denied.
3.
TMGS should be required to post a significant bond if the Court

decides to grant the preliminary injunction.
The Court should require TMGS to post a substantial bond if the Court elects
to enjoin the City. Federal Rule of Civil Procedure 65(c) provides that a court may
issue a preliminary injunction...only if the movant gives security in an amount that
the court considers proper to pay the costs and damages sustained by any party
found to have been wrongfully enjoined or restrained. TMGS cites an inapposite
case involving an anti-suit injunction to argue that the Court should dispense with
the bond requirement.164 But more recently the Fifth Circuit has stressed the
importance of the bond requirement: It assures the enjoined party that it may
readily collect damagesBecause of the importance of the bond requirement,
failure to require the posting of a bond or other security constitutes grounds for
reversal of an injunction.165
The bond is particularly important in this case where the issuance of the
preliminary injunction will effectively invalidate Section 10 in its entirety. If the
Court issues the preliminary injunction and TMGS builds the Barnes Compressor
Station without regard to Section 10, no decision by this Court following a final trial
on the merits will impact the already-built station. The Citys damage is also
monetarily significant a $2,000 per day fine that TMGS will incur if the Court
164
PI Br. at 16 (citing Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996)).
165
Nichols v. Alcatel USA, Inc., 532 F.3d 364, 379 (5th Cir. 2008).

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does ultimately decide that the City can enforce Section 10. In 2007, the median
time from filing to disposition for cases in the Northern District of Texas was 19.4
months.166 If this case follows that trajectory, the City could lose the collection of at
least $1.2 million in fines. The City must be able to readily collect damages
something that is not guaranteed in the current financial climate.167 This Court
should set the bond at least as high as the possible fines that TMGS will incur if
Section 10 is ultimately upheld.
Prayer
Because this case is not ripe for judicial review, the City respectfully suggests
that the Court must dismiss this case for lack of subject matter jurisdiction.
Alternatively, TMGSs motion for preliminary injunction should be denied. TMGS
fails to clearly establish any chancemuch less a likelihoodof success on the
merits, or to meet any of the other requisites for injunctive relief. In the
alternative, the City requests that, if an injunction is entered, TMGS be: (i) required
to post a substantial bond and (ii) ordered to refrain from constructing the Barnes
Compressor Station until a final determination on the merits in this case.
166
U.S. District Court Judicial Caseload Profile, App. 150.
Chesapeake Energy pulls plug on Shale.tv. Monday October 13, 2008,

http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/101408dnbuschesapeake.10bcd
174a.html, App. 141-142; Chesapeake Energy Corporation Discloses CEOs Involuntary Sale of
Common Stock, October 10, 2008, App. 143.
167

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Respectfully submitted,
/s/ M.L. Brimmage, Jr.
Aimee M. Minick
Lacy M. Lawrence
HAYNES AND BOONE, LLP
Dallas, Texas 75202
Telephone: (214) 651-5000
Telecopier: (214) 651-5940
ATTORNEYS FOR DEFENDANT
CITY OF GRAND PRAIRIE, TEXAS
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing instrument was served
on the attorneys of record for all parties to the above cause in accordance with the
Federal Rules of Civil Procedure on the 15th day of October, 2008.
Michael L. Knapek
Scott M. McElhaney
Nicole L. Ruble
Jackson Walker L.L.P.
Dallas, TX 75202
via Electronic Case Filing System
/s/ M.L. Brimmage, Jr.

D-1684730.1
Page 38

Grand Prairie, Texas 2008 Lawsuit Response

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Grand Prairie, Texas 2008 Lawsuit Response

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Case 3:08-cv-01724-D

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 3-08-CV-1724-D

THE CITYS RESPONSE TO PLAINTIFFS

The Citys Permitting Process. ................................................................ 6

TMGS has not applied for a SUP under Section 10................................ 8

TMGS has not complied with any of the other permitting

TMGS has not received required federal permits................................. 14

TMGSs Misleading Public Relations Campaign. ................................. 14

ARGUMENTS AND AUTHORITIES .............................................................. 15

Because there is no justiciable case or controversy and TMGS has

TMGS has failed to satisfy its burden of establishing that it is entitled

TMGS cannot establish a likelihood that it will prevail on the

TMGS cannot establish a likelihood of success on the

TMGS repeatedly admits that only safety

Section 10 is NOT preempted because it is not a

Section 10 does not usurp TMGSs alleged eminent

Section 10 does not violate the Dormant Commerce

TMGS has failed to demonstrate that it will suffer

A preliminary injunction will disserve the public and

TMGS should be required to post a significant bond if the Court

Aetna Life Ins. Co. v. Haworth,

300 U.S. 227 (1937) .................................................................................................. 15

Algonquin Lng v. Loqua,

79 F. Supp. 2d 49 (D.R.I. 2000)................................................................................ 22

Allied Marketing Group, Inc. v. CDL Marketing, Inc.,

878 F.2d 806 (5th Cir. 1989) .................................................................................... 34

ANR Pipeline Co. v. Iowa St. Commerce Comm'n,

828 F.2d 465 (8th Cir. 1987) .................................................................................... 21

Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry,

476 F.3d 326 (5th Cir. 2007) .............................................................................. 19, 21

Camps Newfound/Owatonna v. Town of Harrison,

520 U.S. 564 (1997) .................................................................................................. 21

Cipollone v. Liggett Group,

505 U.S. 504 (1992) .................................................................................................. 21

Citibank, N.A. v. Citytrust,

756 F.2d 273 (2d Cir. 1985)...................................................................................... 32

City of Cleveland v. City of Brook Park,

893 F. Supp. 742 (N.D. Ohio 1995) .......................................................................... 30

Deerfield Medical Center v. City of Deerfield Beach,

661 F.2d 328 (5th Cir.1981) ..................................................................................... 33

Doe v. Duncanville Indep. Sch. Dist.,

994 F.2d 160 (5th Cir. 1993) .................................................................................... 31

Evergreen Presbyterian Ministries, Inc. v. Hood,

235 F.3d 908 (5th Cir. 2000) .................................................................................... 18

Exxon Corp. v. Governor of Md.,

437 U.S. 117 (1978) .................................................................................................. 28

GoNannies, Inc. v. GoAuPair.com, Inc.,

464 F. Supp. 2d 603 (N.D. Tex. 2006)...................................................................... 33

763 F.2d 379 (10th Cir. 1985) .................................................................................. 30

164 F.3d 221 (5th Cir. 1998) .............................................................................. 18, 32

Intl Truck & Engine Corp. v. Bray,

372 F.3d 717 (5th Cir. 2004) .................................................................................... 27

Justin Indus., Inc. v. Choctaw Securities, L.P.,

920 F.2d 262 (5th Cir. 1990) .................................................................................... 30

Kaepa, Inc. v. Achilles Corp.,

76 F.3d 624 (5th Cir. 1996) ...................................................................................... 35

Kern River Gas Trans. Co. v. Clark Cty, Nev.,

757 F. Supp. 1110 (D. Nev. 1990) ............................................................................ 21

Kinley Corp. v. Iowa Utils. Bd.,

999 F.2d 354 (8th Cir. 1993) .................................................................................... 21

Minn. v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981) .................................................................................................. 28

340 F.3d 279 (5th Cir. 2003) .............................................................................. 15, 16