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Landowners sue state over Keystone XL pipeline process

By   /   May 23, 2012  /   21 Comments

Three Nebraska landowners – headed up by Randy (of “Stand with Randy” fame) Thompson — filed a lawsuit today challenging the constitutionality of Nebraska’s new oil pipeline siting law.

The lawsuit was filed with the Nebraska Supreme Court and district court. TransCanada’s second attempt at getting permits for a pipeline across Nebraska – as part of a larger pipeline from Canada to the Gulf Coast refineries – is being handled according to legislation passed by state lawmakers in April.

However, anti-pipeline group Bold Nebraska says the new law reversed many rules and regulations passed during the special session in November – when lawmakers brokered a deal with TransCanada to reroute the pipeline around Nebraska’s ecologically fragile Sandhills.

In response to the lawsuit, a spokesman for TransCanada released the following statement: “TransCanada is aware of the lawsuit but we cannot comment directly on it because it is between private landowners and the State of Nebraska. We continue to work collaboratively with the Nebraska Department of Environmental Quality on defining a new route for Keystone XL that avoids the Sandhills. We continue to be committed to the Keystone XL project, which recent polls have shown is supported by the vast majority of Nebraskans.”

The new law (LB1161) requires the state Department of Environmental Quality to conduct the environmental review of the new route, although Gov. Dave Heineman has final say in approving the new path. Bold Nebraska says the law allows the governor to grant TransCanada immediate authority to take people’s land through condemnation, or eminent domain, without having to wait for federal permits. The group contends that critical steps and transparency were eliminated with the new law, “giving land to a foreign country through eminent domain insufficient review or oversight.”

The lawsuit challenges the authority of the DEQ to handle the environmental review, rather than the Public Service Commission, which normally regulates oil pipelines. The suit also contends the law is special legislation targeted at TransCanada and violates the separation of powers doctrine by failing to provide for judicial review and unlawfully gives the governor the power to permit eminent domain without adequate due process.

Thompson, whose family owns land in the path of the revised route, said in a press statement that he decided to challenge the law because lawmakers shouldn’t craft special legislation to meet the demands of a corporation.

“I am also strongly opposed to the eminent domain provisions of this bill, which, as written, would allow a foreign corporation to condemn Nebraska properties prior to having a permit to construct their project within our borders,” he said.

Another landowner suing the governor is Susan Dunavan, who said she got involved in the case because native prairie grasslands that she’s spent more than 30 years protecting is being threatened by a foreign pipeline.

“I am also here to be a voice for future generations,” she said. “Our Legislature and Governor gave special favors to a foreign corporation but did not listen to their own Nebraska constituents.”

Gov. Dave Heineman said Thursday that the landowners are welcome to file a lawsuit and he’s not surprised Bold Nebraska did so, since they oppose any pipeline and will do whatever it takes to try to stop the project.

He said he doesn’t have doubts about the constitutionality of the law, but added, “I’m not a lawyer.” He said he’s pleased with the environmental review DEQ is conducting — in which four possible routes will be narrowed down to one. He said the route must go around the Sandhills — which he said the four alternatives do — and must meet environmental criteria.

“We’re not stopping until a court tells us to stop,” he said.

Reported by Deena Winter, deena@nebraskawatchdog.org.

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Deena Winter has been a journalist for over 20 years, writing stories for the Northwood Gleaner, Bismarck Tribune, Associated Press, Denver Post and Lincoln Journal Star before joining Watchdog.

  • Jeff Poley

    Deena:

    It’s all about timing. By the time the Keystone XL pipeline is built and Keystone begins diverting oil from midwestern refineries to the gulf coast for export to China, our Governor will be retired. Lee Terry, another toady for Keystone will have had time to find a way to deny he ever supported the pipeline (remember how he wiggled out of his promise to limit his service in the House to twelve years). What we’re witnessing here is the Texas quick-step unleashed upon the folks in Nebraska.

    Jeff…

  • Jane O’Donnell

    Forget all the facts. All the opponents to the pipeline know is to use scare tactics. Do your own research, people. Then you will know the truth. Stop listening to the naysayers, and learn about the positives!

  • TexasAnnie

    We got the pipeline down here and I’ve heard of no problems. But I am in agreement with the anti-eminent domain argument. Hope the Nebraska Supreme Court is too!

    What does your Republican U.S. Senatorial candidate, Fischer, think of the pipeline project? How did she vote in last November and then again in April?

  • Watching From Lincoln

    Dilbit Deb voted in favor of TransCanada’s interests, and as an interesting twist, the only reason TransCanada can use eminent domain against Nebraska citizen landowners is because as a first term senator back in 2006, while TransCanada was in planning for the Keystone I pipeline, Dilbit Deb rewrote the state’s eminent domain laws to “strengthen” landowner rights and limit the types of companies and projects that could use eminent domain proceedings. Funny thing though, Dilbit Deb “forgot” to include pipelines as one of the types of activities not allowed to use eminent domain. Freshman faux pas, or carefully planned omission by her ultimate political financial backers, who stand to profit billions of dollars refining Tarsands crude in their Texas Gulf refineries, the Koch brothers. Nope, Nebraska state politics is just as corrupt as ever, with just another generation of smarmy sleazeballs since Mari Sandoz wrote Capitol City.

    Your right, Jeff. Makes a person wonder just what TransCanada promised Mike Flood in that closed door meeting last November in return for favorable legislation this regular session. Flood’s law firm getting TransCanada’s business handling the eminent domain filings against Nebraska landowners? A cushy, high paying mock job with TransCanada when his term is up? Financial backing, ala Bribery Bruning and Do Nothing Dave, if Flood decides to run for Governor? What has TransCanada promised Do Nothing Dave for his cooperation in screwing over the fourth and fifth generation landowners of this state so TransCanada can seize their land?

  • Watching From Lincoln

    Here’s a positive, Jane O’Donnell. You’re certain to develop cancer, or have severe neurological problems, if your drinking water well were to become contaminated by Tarsands Crude.

  • Watching From Lincoln

    You know, Jane, if we were to forget all the facts as you claim, we’d be left with only the lies and propaganda of TransCanada. Interesting how people like you can just so conveniently revise history and totally ignore the factual evidence of occurrences like the Enbridge 6B Tarsands Crude pipeline disaster in Marshall, Michigan in July of 2010, when a BURIED pipeline ruptured and leaked over 1,500,000 gallons of Tarsands crude into the Kalamazoo River, of which only 60% of has been cleaned up so far at a cost of OVER $800,000,000 to the State of Michigan in clean up costs, or last year’s rupture of Exxon-Mobil’s Tarsand Crude pipeline into the Yellowstone River in Montana that was carried 180 miles downstream.

  • Watching From Sargent

    Sorry Jane, but the science and engineering that you call “scare tactics” are all accurate. If you actually did any research on your own, you’d find that the aquifer that lies underneath Nebraska runs down to Texas and out to Colorado and it’s the single largest water source that feeds every farm and ranch in that area. It is also the water source for many cities.

    The chemicals that make up the materials coming through the pipeline are all cancer producers and toxic. TransCanada wants to run the pipeline right through the Aquifer, which means sooner or later the pipe will burst and pollute it all. This pipeline, which will be in direct contact with the aquifer, will be worse than Love Canal when it ruptures.

    It’s not scare tactics when you tell the truth. It’s not scare tactics when the science and engineering back it up.

  • DUANE

    Jane what are the positives? Is it that the XL pipeline is going to take oil away from midwestern refineries and ship it to the Texas coast where it can be sold on the world market for more money that we are paying for it now? Is that a positive in your mind? Or is it that a Foriegn corporation can come into our state and take land?

  • http://boodogmom@aol.com Joan

    Mr Thompson, I wish you the very best of luck in your law suit. I cannot believe that here in America and in 2012 people are loosing their land just like the American Indians did. The Right Wing Republican Party has been over taken by greed and they will sell their young if they can make a profit. The only hope is to vote them out of office in November even though they want to buy this election.

  • Watching From Sargent

    It’s always easier to take the glowing words from someone like TransCanada as truth, because you never have to look past the surface.

    There will be no jobs for Nebraskans, because high pressure welding is a highly skilled job and it can’t be done by amateurs. The construction company that digs the pipeline ditch has to have experienced crews to dig the ditch and lay the pipe for the welders. Neither one of those jobs are going to go to locals, but they will go to people with years of experience.

    Pipelines burst. Even TransCanada admits that. The estimates range from 50 to 100 bursts in a 10 year span. Doesn’t sound like much, does it? Then again, the pipe will be pressurized to 1200 PSI. That’s enough to gouge a 100 ft diameter hole in less than 10 minutes.

    The route for the Keystone XL pipeline goes right over the Hi Plains and Ogallala Aquifer, and will be buried between 7 and 14 feet deep. The water table there is right at the surface, and in spots, the Aquifer is right at the surface. That means that one burst and the Aquifer is polluted.

    The popular belief is that oil and water don’t mix. They do, and some of the most toxic chemicals will disperse very quickly in the Aquifer. 40% of the fluid pumped through the pipeline is toxic solvent.

    85% of all wells in Nebraska take their water from the Aquifer, and that includes city wells.

    There is no upside for Nebraskans, or anybody else that uses the Hi Plains and Ogallala Aquifer. The only people who make money off of this is the Canadian pipeline company.

    TransCanada is telling people what they want to hear, but the facts don’t back them up. I don’t care how you add it up, that’s not good for anybody but TransCanada.

  • Watching From Sargent

    Joan, it may be the right wing Republican party that’s causing the problem, but I want you to think on this. If President Obama was really against this pipeline, he would not have re-opened the permit process to TransCanada and this whole round of the process would be DOA.

    The TransCanada pipeline is very much in play because President Obama opened the door.

  • Duane

    Yeah, come on all you, pipeline fighters

    TransCanada is at it again

    They got themselves in a terrible jam

    Way down yonder in Nebraskaland

    So pick up a sign and start to run

    We’re gonna have a whole lot of fun

    It’s 1-2-3 what are we fighting for,

    Don’t ask me, I don’t give a damn,

    Lets stop this TransCan.

    It’s 5-6-7 stop it before it’s to late,

    If Keystone XL is put in the ground,

    Watch out, the oil’s China bound.

  • Truth-or-Dare

    Watching from Sargent . . . . thank you for the information you have provided and for being respectful with your comments. It is refreshing to get a perspective without having to wade through all the name calling and nasty commentary..

    The Ogalalla Aquifer stretches from South Dakota all the way down into Texas. It is my understand that there are MANY pipelines – totaling some 21,000 miles – just in Nebraska. Are all of these located underground, and do some of them already cross the Aquifer?? Who is responsible for monitoring the pipelines we already have? The NRC is supposed to monitor the nuclear plants, and it appears to me that they are not performing satisfactorily so I have little faith that if the Federal gov’t is involved that we can count on a high percentage of safety from spills. How are leaks detected when they are so far below the surface?

    Again, thank you for your straight-forward presentation of the facts. I like an good open discussion without recriminations!!! Look forward to reading whatever else you have to sa

  • Watching From Sargent

    Truth-or-Dare, you’re welcome.

    In Nebraska, before LB1161, the Public Service Commission was in charge of permits for all pipelines running through the state. At the Federal level, I believe the Department of Transportation has some oversight.

    Overall, the US Environmental Protection Agency is in charge of all watersheds and water cleanliness standards for surface waters under the Clean Water Act.

    After that, it gets murky as to who is responsible for clean aquifer and ground water. Some of that appears to come under CERCLA (the Superfund act), and a couple of other areas. Oddly enough, it’s not part of the Clean Water Act.

    If you look at the Enbridge spill in Michigan, the EPA thought it was under control and clean until a local activist showed that was not the case.

    Going back to the Nebraska PSC, they managed the placement of many of the previous pipelines, and if you look at the map for Keystone 1, it skirts the Aquifer.

    What should really happen is that the PSC return to managing the pipelines and permitting process, since they have the experience. I believe that an environmental review is part of that process, and if it’s not, it should be. At this point, NDEQ does not appear to have the experience in all of the issues and look to be playing ball with TransCanada. IMHO, a third party environmental research and engineering firm with pipeline experience should be hired to make the evaluations until NDEQ gains the experience they need.

    In addition, it’s federal mandate that all emergency response teams along a pipeline corridor have the information about the chemicals in a pipeline spill. However, TC is shrouding this information under the veil of “Proprietary Information.”

    As we’ve seen, many of the pipeline companies are unable to correctly sense when a leak has taken place. Therefore, once the construction process is complete, there must be regular in person inspections of the pipeline route to check for leaks and contamination.

    Once a spill happens, there is the first response hazmat team, and those must be thoroughly trained.

    Once the spill is contained, there is the clean up and the inspections that must take place afterwards.

    The state must have the authority and ability to shut the pipeline down ASAP.

    The chemicals from this pipeline will require a Superfund clean up. The only way to really clean the dirt and sand is to burn it.

    The money to do provide the training, third party inspections and audits, clean up, etc, should be provided by TransCanada. At the very least, TransCanada should have escrow funds put in place and managed by Nebraska, and left alone by Nebraska, before construction is to start.

    In other words, if TransCanada wants this pipeline, they better be prepared to pay for EVERYTHING that can go wrong with it. Not just in Nebraska, but through out the transit of the line through the United States.

  • Olivia

    Here is a link to a website for N.E.A.T., which is the Nebraska Easement Action Team. Lots of good information for landowners and any citizen of Nebraska with questions about the eminent domain issues addressed in the filing.

  • Olivia

    For some reason the website didn’t show:

  • ricky

    Like I said a million times; the keystone pipeline will NEVER be built.

    Give it up Smith of Papio and Lee Terry; Nebraskans do not want the pipeline.

    ricky from omaha

  • Prairie Dog

    The four routes which are to be narrowed down to one by this so-called review are all directly through the sandhills. A fifth route around the northern edge (which is only a poorly defined limit of what is designated “sandhills”) has already been eliminated because it was too costly. In the end the answer is in the flowchart or diagram of the review process on DEQ’s website. All the back-and-forth between TransCanada and the DEQ, all the public comment, all the APPEARANCE of a real ecological review ends when the recommendations are passed on to the Governor’s Office. Then the decision is a purely arbitrary yes or no.

    GOOD ECOLOGY IS GOOD ECONOMY

  • http://google resistwemuch

    I really have to laugh when a rancher who has taken water from the aquifer for years for irrigation purposes and then washes pesticides, insecticides, and fertilizers(nitrites) back into the system complains about a pipeline that is constantly monitored for minute leaks of product. And, who probably has raised and fed numerous types of livestock on his property for years and has flushed their pee and poop back into the aquifer. Out of curiosity, could the resident geologist who watches from lincoln inform us how many wells in the State of Nebraska are currently on the list kept by the DEQ as being unfit for human use because of livestock feeding as mentioned?

  • http://google resistwemuch

    Still waiting for an answer from our resident expert who is watching from lincoln. Additionally, how does Mr. Thompson and his family treat the human sewage that is generated on his ranch? I am certain he has a licensed waste treatment plant somewhere on site.

  • Watching From Sargent

    You make a valid point, Resistwemuch.

    However, think about this. These kinds of pipelines are not well monitored, no matter what the PR says. Enbridge didn’t know about their leak in Michigan until someone called them up, and by that time, hundreds of thousands of barrels of tar sand crude were in the environment. Even TransCanada admits they will have roughly 10 significant leaks per year.

    The materials being pumped through the pipeline are deadly carcinogens at the levels you will find the various fertilizer and waste products you mentioned.

    So, which do you prefer?