Wednesday, February 19, 2014

Keystone Pipeline Opponents Win Big In Nebraska Court

The Keystone XL Pipeline was handed a huge legal set back by a District Court judge in Lancaster County, Neb. 

Calling the project “a political lighting rod” Judge Stephanie Stacy ruled this afternoon the State of Nebraska erred by giving Governor Dave Heineman sole authority for approving the pipeline’s route through the state.  The change in law approved by the state legislature unconstitutionally took that authority from the utility-governing Public Service Commission and its elected members.

Almost immediatly Nebraska Attorney General Jon Bruning announced the State of Nebraska would appeal, a decision Governor Heineman applauded in a one sentence press release late today.

Judge Stacy, in her 50-page opinion, noted Nebraska law states “in absence of specific legislation, the powers and duties of the (PSC) as enumerated by the Constitution are absolute and unqualified.”  The emergency bill signed by Governor Heineman, according to Judge Stacy, “has the effect of…divesting the PSC of control over the routing decisions of oil pipelines” which is in violation of the state’s Constitution.  

 “Furthermore,” the ruling continued, “the court finds there is no set of circumstances under which such provisions could be constitutional.”

The court blocks the state “from taking any action on the Governor’s January 22, 2013 approval of the Keystone XL Pipeline route.”

Three landowners who opposed having the controversial pipeline pass through their property initiated the lawsuit.  Their attorney, David Domina of Norfolk, Neb. told me in a phone conversation this afternoon “they are all really excited.”  (Read the landowners original court filing here.)

The Keystone XL Pipeline is designed to bring Canadian crude oil to refineries in the United States.  The 36-inch diameter pipes would take the crude over 1600 miles across the country.  The company backing the project, TransCanada, has the support of those who felt the oil was an important part of providing North America with some level of energy independence. 

From the start environmentalists raised objections, including concerns of leaks that could pollute the pure water of Nebraska’s underground aquifer. Some also argued the pipeline only encouraged the use of fossil fuels at a time when alternative energy sources needed to be explored.

Proposed Nebraska pipeline route (Map provided by TransCanada)
The lawsuit, filed in 2012, claimed the PSC has sole jurisdiction to set the pipeline’s route and review TransCanada’s plans.  The “Major Pipeline Siting Act” passed by the Nebraska State Legislature during a special session shifted that authority away from the elected board and gave it to the Governor’s office.  Before the case was heard the attorney for the landowners told the Washington Post “the legislature can’t take that power . . . and transfer the right to one person, a partisan person, the governor, to become the trigger for eminent domain.” 

Attorneys for TransCanada argued the law was constitutional and the governor should maintain that authority.

Today’s ruling could delay the project months or years.  It could force TransCanada into the nightmare scenario of repeating the entire siting process again.

The state legislature could also consider another attempt to change the law.  With only a couple of months left in this year’s short session, getting legislation written and ready to present would most likely either have to wait until next year or be brought up in a special session. 

It’s also unknown how President Obama will respond to the Nebraska court’s decision.  The White House has yet to sign off on the agreement needed to bring the pipeline across the Canadian border.  A spokesperson for the State Department declined to comment, noting that the case was still in the courts.

At the time the case was originally heard the Washington Post noted “even supporters do not believe that would permanently block the project.”