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National and state groups working to stop TransCanada pipeline Jane Kleeb, Bold Nebraska and Kenny Bruno, Tarsands Solutions Network What the Nebraska lawsuit means for Keystone XL March 17, 2014
On February 19th, Lancaster County District Judge Stephanie Stacy ruled Nebraska’s pipeline siting law “unconstitutional and void.” This case, Thompson v Heineman, was a huge win for Nebraska landowners and for everyone involved in this campaign to protect property owner’s rights and our land and water. The result leaves TransCanada with no legal route to build its proposed pipeline across the state. President Obama has said he will evaluate the pipeline for concerns about health, water, and agriculture in Nebraska. It would be inconsistent for the President to approve the pipeline before the legal process is completed in Nebraska and a legally established route is approved in a lawful manner. The President has enough information to reject the pipeline based on climate and water concerns. But he cannot now know what route the pipeline would take through Nebraska; without this information, he cannot be sure whether the Ogallala aquifer or the Nebraska Sandhills will be protected, or violated by the final proposed route. In this memo, we explain the relationship of the Thompson v. Heineman ruling to the federal process for Keystone XL as well as TransCanada’s error in claiming they still have a legal route.
Pipeline at a Standstill in Nebraska
Dave Domina, the lawyer who argued the case for the landowners, said: “Under the Court’s ruling, TransCanada has no approved route in Nebraska. TransCanada is not authorized to condemn the property against Nebraska landowners. The pipeline project is at standstill in this State.” The Obama Administration delayed a decision in 2011 because of concerns about the Nebraska route. Per President Obama, “Because this permit decision could affect the health and safety of the American people as well as the environment, and because a number of concerns have been raised through a public process, we should take the time to ensure that all questions are properly addressed and all the potential impacts are properly understood.” Again, there is not a Nebraska route on the table; TransCanada has not submitted an application to the Public Service Commission, and no pipeline construction impact study exists for the PSC to evaluate. One cannot assume TransCanada’s most recent route is final or will be approved by Nebraska’s PSC. Objections to the route have not been submitted or considered because no formal process has been used for this purpose, and it may be months until a route is designed. Nebraska Attorney General Bruning appealed the Thompson ruling immediately. The appeal process could take 8-10 months until a final decision. If the ruling is upheld by the Nebraska Supreme Court, as we believe it will be, then TransCanada may decide to make a filing with the Nebraska Public Service Commission (PSC). The time involved thereafter would likely be at least 7 months.
TransCanada Errs in Stating That The Route Remains Valid
Since the Nebraska court ruling, TransCanada has erroneously claimed the decision has no bearing on its ability to build the pipeline, and that the pre-existing route remains valid throughout the appeals process. There is no truth to these claims. In response to TransCanada’s statements, Dave Domina said, “TransCanada’s comments released this morning demonstrate a deeply rooted misperception of the legal environment in Nebraska. Not only has it failed to understand the land, water, and people of the State, apparently this foreign company does not appreciate the law either.” Specifically, Domina continued, TransCanada’s claims are not based in the legal reality of the situation: “The Court found that the State Constitution trumps the law declared invalid. The Defendant officials are bound to abide by this decision until it is altered by the Supreme Court...Governors and State Treasurers cannot ignore court orders as TransCanada suggests.” Furthermore, “The Governor’s declaration of route validity pursuant to unconstitutional LB 1161 is a nullity. The State Department and President cannot know what route the pipeline will follow, or whether TransCanada will be deemed competent to operate a pipeline, when and if it applies for permission to do so under a valid Nebraska procedure. If TransCanada’s press statement is to be read as its threat that it will now start filing condemnation cases in Nebraska, it will find itself at an abrupt halt at the starting gate. A display of such corporate hubris would not go over well with the Nebraska judiciary. TransCanada continues to display disregard – first for Nebraska’s important natural resources, second for its citizens and land owners, and now, for Nebraska’s court system.” It is important to remember that TransCanada and its allies created LB 1161 in order to bypass the PSC in the first place. They know that the PSC process has higher standards that must be met. They are also required to consider the views of governing bodies along the proposed route, which is significant since two Natural Resource Districts and one county have passed resolutions opposing the pipeline. Per PSC rules: • TransCanada must provide a Safety Data Sheet with “a description of the product or material to be transported through the major oil pipeline” as well as first-aid measures, emergency response measures, and toxicological information. TransCanada will have the burden of proof in establishing that the proposed pipeline route is in the public interest. TransCanada must provide an environmental impact study, a comprehensive soil permeability study, a distance-to-groundwater survey, and also determine “whether any other utility corridor exists that could feasibly and beneficially be used for the route of the major oil pipeline.”
As state and national groups continue to discuss this lawsuit with allies and the media, we should all remember that TransCanada and Nebraska Governor Heineman are to blame for future delays that could add at least one year, possibly more, to the decision-making process because of legal appeals in Nebraska and possibly at the federal level. This court decision was not a political judgment. This was a legal ruling that found that the law approving the process for the pipeline route was illegal and disregarded landowner rights and the Nebraska state constitution.
TransCanada can either wait for a ruling from the Nebraska Supreme Court, or it can apply to the PSC now. Either way, the minimum delay before a new route can be legally established is probably on the order of seven months, and the likely timeline is even longer. Given this reality, we see no political or legal path to KXL federal permit approval in 2014. The President and State Department could in theory delay a decision on the Presidential Permit decision until the Nebraska issues are resolved; however that would be a long delay with no firm end date. Until the route approval process is finished and then a final route is finalized in Nebraska, approximately 270 miles remain unanalyzed and unaccounted for.
Link to lawsuit background and ruling: http://boldnebraska.org/lawsuit Link to NE PSC rules/process on pipeline permit (starts on page 42 for oil pipeline): http://www.psc.state.ne.us/rules/rules_natgas.pdf Link to State Department Memorandum of Understanding from last Nebraska process: http://keystonepipeline-xl.state.gov/documents/organization/191054.pdf -end-