By Deena Winter | Nebraska Watchdog
LINCOLN – While much of the nation is waiting on the White House to give the Keystone XL pipeline a green light, or not, a lawsuit that went to trial today in Nebraska has the potential to throw yet another obstacle in the path of the proposed 1,179-mile pipeline across America.
Three landowners who oppose the pipeline filed the lawsuit against the state, challenging the constitutionality of a law passed last year that changed the pipeline route approval process. The bill, LB1161, gave the governor and state environmental regulators authority to approve or deny the revised route through Nebraska, rather than the Public Service Commission.
Pipeline fighters in Nebraska have long claimed TransCanada, the Canadian company trying to get the Keystone XL pipeline approved, basically wrote the bill. The lawsuit also contends lawmakers didn’t have the authority to grant a foreign company condemnation powers.
Brian Jorde, an Omaha attorney helping represent the landowners, said if the process used to approve the route through Nebraska is deemed unconstitutional, TransCanada would have to go back to square one with the siting process. While a federal permit is required because the route crosses an international border, Nebraska oversees the 195 miles through Nebraska. TransCanada has already revised its route through Nebraska once.
TransCanada has said the company is confident the law is constitutional and will continue securing easements in Nebraska, even though if landowners prevail the siting process could drag out for years, with appeals.
“It could take a year or more but if you’re a pipeline carrier, are you going to invest hundreds of millions to be told that route is not valid?” Jorde said.
The landowners are requesting an injunction that would prevent TransCanada from beginning construction in Nebraska. But if that is denied and the company gets a green light from the feds and starts building the pipeline through Nebraska, they risk the possibility of having a court tell them to start over.
“It’s a business decision,” Jorde said. “It’s a risk.”
Since the lawsuit challenges the constitutionality of a law, the trial only lasted about an hour, with oral arguments and no witnesses. Lancaster County District Judge Stephanie Stacy will rule later. Stacy has twice rejected the attorney general’s attempts to have the case thrown out.
“If we are successful in our lawsuit TransCanada will have to start the Keystone XL siting process over again through the Nebraska Public Service Commission, so it would be premature for the State Department to issue a final EIS when the route across Nebraska remains very much in question,” said Randy Thompson, one of the plaintiffs and a prominent spokesman for the anti-pipeline group Bold Nebraska.
“As citizens, we are asking the State Department to respect the legal process and our state’s constitution.”
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