Keystone XL statute unconstitutional, Nebraska court rules

Legislation authorizing Nebraska Gov. Dave Heineman (R) to approve a route for the proposed Keystone XL crude pipeline is unconstitutional under state law, a district court in the state ruled on Feb. 19.

Nebraska Attorney General Jon Bruning (R) immediately appealed the decision by Lancaster County, Neb., District Judge Stephanie F. Stacy.

It was not clear whether her ruling would affect US Department of State deliberations on whether approving a cross-border permit for the proposed crude oil pipeline from Alberta to US Gulf Coast refineries is in the US national interest.

Dave Domina, an attorney who represented the 3 property owners who sued the state, said the case was not about the merits of a particular pipeline, but concerned whether Heineman and Nebraska’s legislature usurped regulatory authority constitutionally delegated to the state’s public service commission.

The legislature approved, and Heineman signed LB 1161 in early 2012. It amended 2 special bills adopted during the legislature’s Fall 2011 special session: LB 1, the Major Oil Pipeline Siting Act, and LB 4, which gave Nebraska’s Department of Environment Quality authority to work with the federal government in preparing a supplemental environmental impact statement under the National Environmental Policy Act for oil pipelines more than 8 in. in diameter.

Called special session

Heineman had called state lawmakers back into a special session after several Nebraskans expressed concerns about Keystone XL’s original route across the Sand Hills and the Ogallala Aquifer.

TransCanada Corp., the project’s sponsor, filed an amended application with a different route in 2012 in response. DOS issued a final supplemental EIS on the new application on Jan. 31 (OGJ Online, Feb. 1, 2013).

Domina said, however, that Stacy’s decision means “TransCanada has no approved route in Nebraska. [It] is not authorized to condemn the property against Nebraska landowners. The pipeline project is at standstill in this state.”

“It will be impossible to determine whether this project is in the national interest until Nebraska approves a route for the pipeline,” said Anthony Swift, a Natural Resources Defense Council policy analyst.

“The PSC route may differ markedly from the controversial route proposed through the governor’s expedited process,” he suggested in a Feb. 19 blog. “If so, the new route will need to be fully evaluated by state and federal authorities.”

Contact Nick Snow at nicks@pennwell.com

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