Case to Delay Keystone XL Pipeline Before the Nebraska Supreme Court

Published December 7, 2018

Represented by Attorney Dave Domina, a group composed of dozens of landowners affected by the Keystone XL oil pipeline, environmental groups, and two Indian tribes, are suing to force the pipeline’s owner, TransCanada, to reapply for approval to build the portion of the pipeline slated to cross Nebraska.

After years of regulatory and legal battles at both the state and federal levels, Nebraska’s Public Service Commission approved a route different than the one TransCanada had preferred for its 36 inch oil pipeline in November 2017.


History of Delay

Completion of the Keystone XL Pipeline has been delayed for more than a decade amidst legal and political wrangling. Upon completion, the Keystone XL pipeline would carry up to 830,000 barrels of crude oil a day from the tar sands region of Alberta to refineries on the U.S. Gulf Coast. Unlike most refineries in the United States, refineries on Texas’s coast are capable of handling the thicker tar sands oil.

While most portions of the pipeline have already been built, despite TransCanada first winning approval for the portion of the route across Nebraska from Gov. Dave Heineman in 2013, the Obama administration blocked construction as part of its efforts to fight climate change by limiting access to and the use of fossil fuels. Shortly after taking office as President in 2017, Donald Trump reversed the federal government’s position and approved the leg of the pipeline through Nebraska. During the interim, however, Nebraska’s 2013 approval of the pipeline route expired, forcing TransCanada to reapply for approval of a pipeline route.


Supreme Court Hears Challenge

PSC rejected TransCanada’s proposed route instead approving an alternative route paralleling more miles of an existing TransCanada pipeline than the company’s proposal. TransCanada accepted PSC’s decision.

In a case that reached Nebraska’s Supreme Court, on November 1, Domina argued PSC did not have the authority to approve the route it ultimately signed off on.

The lawsuit filed by environmentalists, affected landowners, and the Indian Tribes is among the final barriers delaying completion of the $8 billion pipeline project.

Domina argued TransCanada presented only one route to the PSC for approval, not the “mainline alternative route” PSC approved, and under the 2011 Major Oil Pipeline Siting Act, PSC was only allowed to approve alternative routes if the governor first rejects a route.

“TransCanada came in riding one horse … and it got no votes for that horse,” Domina told the Supreme Court according to the Omaha World Herald. “It lost.”

Domina argued TransCanada erred by not seeking the Governor’s approval for their pipeline route, first, before approaching PSC for approval.

“Without a denial [by the governor], the PSC can’t act,” Domina said.  As a result TransCanada must begin the process afresh, argued Domina, seeking new approval for PSC’s chosen pipeline route through Nebraska.


Approval Legal Says State, TransCanada

Nebraska’s Attorney General’s office, as well as lawyers representing PSC and TransCanada, argued before Nebraska’s Supreme Court the company’s application actually provided information about multiple routes, meaning PSC had sufficient information to approve the route it chose, and state law does not, in fact, require the Governor to act before PSC may approve a route.

“Any argument that there was no evidence about the mainline alternative route [in the application] is just wrong,” said Omaha attorney Jim Powers, arguing on behalf of TransCanada, reports the Omaha World Herald.

Assistant Nebraska Attorney General Dave Lopez argued, contrary to Domina’s claim, state law allows pipeline companies “two choices,” to either seek approval from a governor or the PSC.

“There’s an ‘or’ between gubernatorial approval or going to the Public Service Commission,” said Lopez, who went on to tell  the court under existing law PSC has the authority to approve an alternative pipeline route if it decides it is in the public interest, which PSC argued was the case in this instance.

If Nebraska’s Supreme Court finds PSC’s approval was legal, the company says it plans to begin construction on the final leg of the pipeline in 2019, announcing it has begun moving supplies and equipment to South Dakota and Montana in anticipation of the Supreme Court deciding the case in TransCanada’s and the state of Nebraska’s favor.

H. Sterling Burnett, Ph.D. ([email protected]) is the managing editor of Environment & Climate News.