grand prairie, texas 2008 lawsuit response

8/10/2019 Grand Prairie, Texas 2008 Lawsuit Response

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TEXAS MIDSTREAM GAS

SERVICES, L.L.C.,

Plaintiff,

VS.

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

CITY OF GRAND PRAIRIE; ROBARD, in his official capacity as ChiefBuilding Official of the City Of GrandPrairie; RON McCULLER, in hisofficial capacity as Director of PublicWorks of the City of Grand Prairie;ROMIN KHAVARI, in his officialcapacity as City Engineer of the Cityof Grand Prairie; and JOE SHERWIN,in his official capacity as Floodplain

Administrator of the City of GrandPrairie,

Defendants.

THE CITYS RESPONSE TO PLAINTIFFS

APPLICATION FOR PRELIMINARY INJUNCTION AND BRIEF IN SUPPORT

Marty L. Brimmage, Jr.State Bar No. 00793386

Aimee M. MinickState Bar No. 24026882Lacy M. Lawrence

State Bar No. 24055913

HAYNES AND BOONE, LLP901 Main Street, Suite 3100Dallas, Texas 75202Telephone: (214) 651-5000Telecopier: (214) 651-5940

ATTORNEYS FOR DEFENDANTCITY OF GRAND PRAIRIE, TEXAS

Case 3:08-cv-01724-D Document 16 Filed 10/15/2008 Page 1 of 45


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TABLE OF CONTENTS

Page

I. SUMMARY OF ARGUMENT.............................................................................1

II. FACTS ................................................................................................................. 3

A. The City and TMGS actively negotiated Section 10. The purpose wasto promote compressor stations in the City that are compatible withsurrounding 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 anyof the other permittingrequirements. ......................................................................................... 10

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

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

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

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

alleged no cognizable injury, the Court lacks subject matterjurisdiction.............................................................................................. 15

B. TMGS has failed to satisfy its burden of establishing that it is entitledto injunctive relief. ................................................................................. 18

1. TMGS cannot establish a likelihood that it will prevail on themerits of any of its claims. .......................................................... 19

a. TMGS cannot establish a likelihood of success on themerits because the PSA and Texas state law do NOT

preempt Section 10. .......................................................... 19

i. TMGS repeatedly admits that only safetyregulations are preempted..................................... 19

ii. Section 10 is NOT preempted because it is not asafety regulation..................................................... 22



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b. Section 10 does not usurp TMGSs alleged eminentdomain power and, even if it did, the Citys interest inSection 10 is superior to TMGSs. .................................... 24

c. Section 10 does not violate the Dormant Commerce

Clause. ............................................................................... 26

2. TMGS has not shown and cannot show ANY of the prerequisitesfor injunctive relief. ..................................................................... 30

a. TMGS has failed to demonstrate that it will sufferirreparable harm in the absence of an injunction. ..........32

b. A preliminary injunction will disserve the public andinjure the City. .................................................................. 35

3. TMGS should be required to post a significant bond if the Courtdecides to grant the preliminary injunction. .............................. 36



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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



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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



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vi

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



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THE CITYS RESPONSE TO PL INTIFFS Page 1PPLIC TION FOR PRELIMIN RY INJUNCTION ND BRIEF IN SUPPORT

D-1684730.1

THE CITYS RESPONSE TO PLAINTIFFS

APPLICATION FOR PRELIMINARY INJUNCTION AND BRIEF IN SUPPORT

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),1and 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)2preliminary 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

beforea 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 preventingTMGS from building a compressor station on

land that is owned by TMGS. Specifically, that Section 10, designed to promote the

1The Courts order dated October 2, 2008 combined the deadline for the TRO response and the PIResponse. This PI Response focuses on the Preliminary Injunction Application since the purpose of aTRO ceases upon the Courts consideration of the preliminary injunction (seeGranny 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 litigationand prevent irreparable harm until a hearing can be held on a preliminary injunction)). To theextent the TRO is not moot, it should be denied for the same reasons the PI should be denied as setforth fully in this PI Response.

2TMGS and Chesapeake have been used synonymously by both TMGS and the City - as stated byTMGS, TMGS is a gas utility and subsidiary of Chesapeake Energy Marketing, Inc. which is anaffiliate of Chesapeake Energy Corporation. September 30, 2008 Letter, App. 131-132.



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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

3Lasher Aff. 3, App. 002.




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D-1684730.1

(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




8Lasher Aff. 5, App.002.


10Lasher Aff. 7, App. 003; AskChesapeake.com, October 3, 2008, www.askchesapeake.com/EN-US/NeighborhoodCenter/pages/Barnescompressorstation.aspx, App. 146.

11Lasher Aff. 7, 9, 11, App. 003 and 004.



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D-1684730.1

5. 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.17Section 10 does not apply in any way to pipeline activity below the

ground.18 The Citys sensitivity is with adjacent residential developments.19


13Lasher Aff. 9, App. 004.14Lasher Aff. 11, App. 004.

15Lasher Aff. 11, App. 004; Transcript, App. 011.







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D-1684730.1

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









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c. 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

26Lasher Aff. 14, App. 005-006.

27Lasher Aff. 12, 15, App. 005-006; Transcript, App. 012.28Lasher Aff. 15, App. 006.



31Lasher Aff. 16-18, App. 006-007.

32Lasher Aff. 17-18, App. 007.




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

12. TMGS has not complied with anyof 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


35Lasher Aff. 20, App. 007-008; April 2, 2008 Letter, App. 052-053.

36Lasher Aff. 20, App. 007-008.37Lasher Aff. 20, App. 007-008.








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D-1684730.1

15. 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

43Lasher Aff. 22, App. 008.44Lasher Aff. 22, App. 008.




48Lasher Aff. 22, App. 008-009.




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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 anyof 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

50AskChesapeake.com, October 3, 2008, www.askchesapeake.com/EN-US/NeighborhoodCenter/pages/Barnescompressorstation.aspx, App. 146 and 148.

51Lasher Aff. 10, App. 004; Sherwin Aff. 4, App. 135.


53Sherwin Aff. 5, App. 135.





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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 theTrailwood Subdivision, which is immediately south of the site. Thisoutfall was constructed in the late 1970s and discharges into a channel(the Tributary) which drains north, across the TMGS site, and intoFish Creek.

TMGS had constructed a driveway across the Tributary. Since noengineering plans were submitted prior to the construction of thisdriveway, the Citys immediate concern was whether the driveway

56Sherwin Aff. 7, App. 136.57Sherwin Aff. 7, App. 136.








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would obstruct flow from the Tributary and possibly flood neighboringproperties.

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 dustabatement had not been installed properly. Without those devices inplace, sediment and debris from the exposed ground could betransported to Fish Creek, potentially impacting the environmentalbalance 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 regardingTMGSs plans, if any, for a headwall.

In addition, the current site plan does not show existing utilities. Anexisting sanitary sewer line runs through the property and had

previously been exposed as a result of erosion over time. It is essential

63Sherwin Aff. 9, App. 136-137.







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D-1684730.1

that this line and other utilities be marked on the site plan so thatthey are not exposed or damaged during the construction.

The site plan does not provide the details regarding the driveway. Off-site drainage has not been accounted for and the routing of this water

across the driveway was not analyzed. This could potentially create ahazardous condition on Matthew Road if the off-site drainage is re-routed onto Matthew Road because of the obstruction caused bydriveway. The City also has a standard detail for the drivewayapproach which was not constructed. No written request for avariance was submitted to the City Engineer.

There is only one entrance and exit driveway for the site. Theelevation at this site is approximately 498 feet while the Base FloodElevation is approximately 503 feet at this location. This means thatthe driveway sits several feet below the floodplain. In the event of aflood, emergency vehicles and private vehicles would be unable toaccess or exit the site. Until an alternate location for the driveway isestablished, the City cannot approve the Floodplain Permitapplication.

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 andGrubbing Permit application with its most recent set of site plans.68

26. 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






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E. 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 hasrefused to issue necessary permits to TMGS and that the City wasattempting 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 thisland for its intended purpose and that TMGS has filed suit askingthe court to allow TMGS to build the compressor station.75Chesapeakes letter is doubly misleading because it also attributes anyand all delays in royalty payments to the Citys actions as opposed to




74AskChesapeake.com, October 3, 2008, www.askchesapeake.com/EN-US/NeighborhoodCenter/pages/Barnescompressorstation.aspx, App. 145.

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



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

76See Aetna Life Ins. Co. v. Haworth,300 U.S. 227, 239-40 (1937).

77Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003).

78Texas v. United States, 523 U.S. 296, 300 (1998).

79Urban 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 regardlessof 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


81Lasher Aff. 19, App. 007; Sherwin Aff. 12-14, App. 137-139.

82 Monk v. Huston, 340 F.3d 279 (5th Cir. 2003).

83Id. at 281.



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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 shouldthe 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

84Id. at 283.

85Id. (holding that until the TCEQ issues the permit, this dispute remains abstract andhypothetical); 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 havebeen an order hanging in the air, ready to become effective only if the New Orleans City Counciltook one of several possible future actions.).


87See Section II, supra, 21-28.

88Plaintiffs Original Complaint (Compl.) 5.14; Plaintiffs Application for Temporary RestrainingOrder and Preliminary Injunction (Application), p. 14.

89This analysis applies to TMGSs standing to raise its claims as well. The standing and ripenessdoctrines often overlap in practice, particularly in an examination of whether a plaintiff hassuffered 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).

90United 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 011.92Lasher Aff. 15, App. 006.

93United Trans. Union, 205 F.3d at 858.

94University of Texas v. Camenish,451 U.S. 390, 395 (1981).

95See Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 917 (5th Cir. 2000).

96Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998).



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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

97Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).

98See Compl. 5.2 (alleging that Section 10 is preempted because it is a standard intended toregulate pipeline facility safety); Plaintiffs Brief in Support of its Application for TemporaryRestraining Order and Preliminary Injunction (Pl.s Br.) at 5 (The PSA exclusively regulatessafety standards . . . .); id.at 6 ([T]he scope of the PSA encompasses safety standards applicable tocompressor stations.).

99Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 333 (5th Cir. 2007).

100Id.



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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 safetystandards for interstate pipeline facilities or interstate

pipeline transportation.102 Similarly, the Texas Utilities Code gives the Texas

Railroad Commission (RRC) exclusive jurisdiction over safetystandard[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

101Id. at 334.

10249 U.S.C. 60104(c) (emphasis added).

103TEX.UTIL.CODE 121.201(b)(2) (emphasis added).

104Id. 121.202(b).

105See Pl.s Br. at 8-10.



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clear Congressional intent,106which 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

106Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 334 (5th Cir. 2007).

107Id.(quotation omitted); see Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 616-17 (1997) (noting that field pre-emption is itself suspect, at least as applied in the absence of acongressional command that a particular field be pre-empted and that the Courts recent caseshave frequently rejected field pre-emption in the absence of statutory language expressly requiringit); Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992) (When Congress has considered the issueof pre-emption and has included in the enacted legislation a provision explicitly addressing thatissue, 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 thesubstantive provisions of the legislation. (quotations and citation omitted)).

108See Kinley Corp. v. Iowa Utils. Bd., 999 F.2d 354, 359 (8th Cir. 1993) (discussing expresspreemption 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

inconnection with interstate gas pipelines . . . .); Natural Gas Pipeline Co. of Am. v. Railroad Commnof Tex.679 F.2d 51, 53 (5th Cir. 1982) (noting that Section 1672(a)(1) expressly prohibits stateadoption 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 PipelineCo. v. Jackson Cty, MN, 512 F. Supp. 1261, 1264 (D. Minn. 1981) ([T]he provisions and legislativehistory 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 ParishPolice Jury, 319 F. Supp. 1138, 1140 (E.D. La. 1970) (noting that Congress . . . intended by theNatural Gas Pipeline Safety Act of 1968 to give exclusive jurisdiction to the Department ofTransportation to regulate the

safety

of interstate transmission facilities and Congress intendedto avoid dual

safety

regulation of interstate transmission facilities) (emphasis supplied in all).

109ANR Pipeline, 828 F.2d at 471 (The Supreme Court has recently held that even where federallaw preempts state regulation of certain activities in a given field, state regulation of distinctactivities in that field is permissible where the state regulation does not conflict with the federallaw.); Kern River, 757 F. Supp. at 1115 (Some permits which do not target concerns alreadyexhaustively reached by the Natural Gas Act may properly be the subject of County and City action.



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Complaint alleges onlyexpress 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.

110Compl. 5.2 (Section 10 is a standard intended to regulate pipeline facility safety . . . .Accordingly, Section 10 is preempted by federal law.).

111Lasher Aff. 4-6, 12, App. 002-003, 005; Transcript, App. 011.

112UDC 4.10.4(B)-(C).

113Id. 4.10.4(E).

114Id. 4.10.3.

115Id. 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 wayimpact the

116Lasher Aff. 4-6, 12, App. 002-003, 005.

117UDC 4.2.10(A).

118Id. 4.10.5.

119Lasher Aff. 4-6, 12, App. 002-003, 005.


121Id.,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 domainpower 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.

122Pl.s Br. at 7 (emphasis added).

123Id. Similarly, and bizarrely, TMGS also argues that both the PSA and Section 10 regulate thelocation of compressor stations. Id. This argument is ironic, since the PSA expressly prohibits theSecretary from prescribing the location of a pipeline facility. 49 U.S.C. 60104(e).



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

ordinances affecting its ownproperty. Texas courts have held that a general grant

of eminent domain power does notexpressly 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

Mayor, I do have a question. This is a real big point. Do youthink youll ever agree that we have the right to tell you whereyou can or cannot go? Listening to your testimony, I dontthink you will agree with that statement. I think thats thelogging jam? Youll agree to articulation, youll agree to brickyoull agree to gravel or cement but the basic dilemma as I seeit is you disagree that we have the right to tell you that you canor cannot put it at a particular location. Can you answer thatfor me?

Jeb Loveless,attorney forTMGS

Yes. I think youre right.126

Mayor, CharlesEngland

Let me make sure I understood what you told CouncilmanJensen that you really dont see it being on the table to changethe location.


I didnt say that we wouldnt work with the City on the locationbut I do agree that we have the right to determine the locationbut we have the right to agree on the location also.

Mayor, CharlesEngland

Okay. Im not sure thats. Youre saying that you have theright to locate what weve been talking about period. You thinkyou have that right.


Yes, because I said that at the outset that if its eminentdomain we have that right.127

124Porter v. Southwestern Pub. Serv. Co., 489 S.W.2d 361, 363 (Tex. Civ. App.Amarillo 1972, writrefd n.r.e.) (emphasis added).

125SeePorter, 489 S.W.2d at 362 (an entitys eminent domain power is subject to a citys valid zoningordinance).

126Transcript, App. 019.

127Transcript, App. 020.



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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

128Porter, 489 S.W.2d at 365.

129Pl.s Br. at 10-11.

130TMGS relies onCity of Lubbock v. AustinandAustin Independent School District v. City of

Sunset Valley, but neither provides support for TMGSs eminent domain argument. In City ofLubbock, the court merely held that a city is not bound by its own zoning ordinances when exercisingits eminent domain powers. InAustin Independent School District, the court narrowly held that acity may not utilize its zoning power to wholly exclude from its boundaries proposed school facilitiesthat 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

131West 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).

132Tex. 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 citysordinance barred trailer coach housing in most areas).

133New Hampshire Motor Trans. Assn v. Plaistow, 67 F.3d 326, 333 (1st Cir. 1995).

134Pl.s Br. at 12.



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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,139the Fifth Circuit rejected

TMGSs theory. In Wood Marine, the city of Harahanpassed 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 willnot be able to discharge crushed limestone and other constructionmaterials at its Harahan facility. . . . [This] does not establish theexistence 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 marketequilibrium speak to the wisdom of the statute, not to its constitutionality under the dormantCommerce Clause).

139858 F.2d 1061 (5th Cir. 1988).

140Wood Marine Service, Inc. v. Harahan, 858 F.2d 1061, 1065 (5th Cir. 1988).

141Id.



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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

142See id. at 1066 (Zoning is a legislative function entitled to great deference.).

143See supra, I.A.2; Lasher Aff. 4-5 App. 002.

144See Nederland, 101 F.3d 1095, 1104 (5th Cir. 1996) (Maintenance of property values has longbeen 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 propertyvalues); City of Cleveland v. City of Brook Park, 893 F. Supp. 742 (N.D. Ohio 1995) (discussing noiseregulation); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1226 (N.D. Ga. 1992) (discussinglegitimacy of preserving residential neighborhoods, avoiding blight, and reducing noise and traffic).

145Guschke v. Oklahoma City, 763 F.2d 379, 384 (10th Cir. 1985).

146Justin Indus., Inc. v. Choctaw Securities, L.P.,920 F.2d 262, 269 (5th Cir. 1990) (citing CanalAuth. v. Callaway,489 F.2d 567, 576 (5th Cir. 1974)).



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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,148and an analysis of all four elements is

appropriate here.

147Pl.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. Cityof Farmers Branch, 469 F. Supp. 2d 757 (N.D. Tex. 2007)).

148See 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 findingirreparable harm where school district violated the Establishment Clause of the Constitution). Inaddition, both VRCand the case that it relied upon, Trans World Airlines, Inc. v. Mattox, 897 F.2d773, 784 (5th Cir. 1990), involved permanent, rather than preliminary, injunctions. See N.Y. StateRest. Assn v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 368 (S.D.N.Y. 2008) (These casesaddressed the question of irreparable harm in the context of a permanent injunction, after theappellate 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 themerits of the preemption claim, little or no additional showing with respect to the other three factorsis necessary.).



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a. 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 needfor a preliminary injunction. Absent a good explanation, a substantialperiod of delay militates against the issuance of a preliminaryinjunction by demonstrating that there is no apparent urgency to therequest for injunctive relief. Evidence of an undue delay in bringingsuit 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

149Hoover, 164 F.3d at 224.

150Wireless Agents, L.L.C. v. T-Mobile USA, Inc.,2006 WL 1540587, *3 (N.D.Tex. June 6, 2006)(Fitzwater, J.) (citations omitted).




154Tough Traveler, Ltd. v. Outbound Prod.,60 F.3d 964, 968 (2d Cir. 1995) (vacating preliminaryinjunction 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



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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 reliefrebutted any presumption of irreparable harm).

155Wireless Agents, L.L.C.,2006 WL 1540587 at *3.

156Morales 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 at2006 U.S. App. LEXIS 29382 (5thCir.Sept. 6, 2006).


158The City assumes, for purposes of this section, that TMGS is somehow capable of succeeding onthe merits.

159Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (An injuryis irreparable only if it cannot be undone through monetary remedies.).



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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 re-

design a new pipeline plan.162

Mr. Wilkinson does not, however, identify anyof

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.

160Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975) (quoting Virginia Petroleum JobbersAssociation v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)) (emphasis in original).

161Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 810 n.1 (5th Cir. 1989).

162Wilkinson Decl. 14.



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b. 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




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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

164PI Br. at 16 (citing Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996)).

165Nichols 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.

166U.S. District Court Judicial Caseload Profile, App. 150.

167Chesapeake Energy pulls plug on Shale.tv. Monday October 13, 2008,http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/101408dnbuschesapeake.10bcd174a.html, App. 141-142; Chesapeake Energy Corporation Discloses CEOs Involuntary Sale ofCommon Stock, October 10, 2008, App. 143.



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Respectfully submitted,

/s/ M.L. Brimmage, Jr.Marty L. Brimmage, Jr.

State Bar No. 00793386Aimee M. MinickState Bar No. 24026882Lacy M. Lawrence

State Bar No. 24055913

HAYNES AND BOONE, LLP901 Main Street, Suite 3100Dallas, Texas 75202Telephone: (214) 651-5000Telecopier: (214) 651-5940

ATTORNEYS FOR DEFENDANTCITY 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 theFederal Rules of Civil Procedure on the 15thday of October, 2008.

Michael L. Knapek via Electronic Case Filing System Scott M. McElhaneyNicole L. RubleJackson Walker L.L.P.901 Main Street, Suite 6000Dallas, TX 75202

/s/ M.L. Brimmage, Jr.Marty L Brimmage Jr


grand prairie, texas 2008 lawsuit response

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