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Nebraska Court finds the proposed route for Keystone XL unconstitutional

Anthony Swift

Posted February 19, 2014

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Nebraska - Sign Water Jane Kleeb.jpg

In what is a major victory for farmers, ranchers and other landowners, Nebraska’s District court has declared the route for the proposed Keystone XL tar sands pipeline through that state to be unconstitutional. This significant court decision means once again that the proposed Keystone XL tar sands pipeline does not have an approved route through the State of Nebraska. Moving forward, this is likely going to mean that Keystone XL’s route through Nebraska will have to go through a more rigorous process conducted by the state’s Public Service Commission. This is an important decision given that landowners know the Keystone XL tar sands pipeline poses an unacceptable risk to the land and water that farms, families and communities depend on. This is also a clear signal to the State Department to stop the ninety day National Interest Determination (NID) clock for the same reason it stopped it in 2011, to give Nebraska the opportunity to determine Keystone XL’s route in accordance with its laws. 

Dave Domina, the lawyer who handled the case for the landowners summarized the ruling

“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.” 

This is a very significant decision and is likely to impact the federal decision making process around Keystone XL as it has in the past. In November 2011 after Nebraska passed its new pipeline siting laws, the State Department stopped the NID clock for Keystone XL in order to allow Nebraska to evaluate the route. After Congress passed a law requiring Keystone XL to be approved or denied in sixty days, President Obama denied the permit because the deadline required a decision before Nebraska proposed a route – preventing federal review of that route. President Obama refused to make a decision on Keystone XL until it had a route in accordance with state law, and there is no reason for the President to chance course now.

This ruling gives Nebraskans an opportunity to engage in their state’s regulatory process to ensure that their concerns are heard and that the risks the tar sands pipeline poses to their most sensitive lands and waters and communities are considered in the pipeline siting process. 

Jane Kleeb, the Director of Bold Nebraska, said:

"Citizens won today. We beat a corrupt bill that Gov. Heineman and the Nebraska Legislature passed in order to pave the way for a foreign corporation to run roughshod over American landowners," said Bold Nebraska director Jane Kleeb, in reaction to the decision in Thompson v. Heineman that found LB 1161 — the law that fast-tracked approval of the Keystone XL pipeline route in Nebraska — to be unconstitutional. 

"We look forward to the Public Service Commission giving due process to a route that TransCanada will have to now submit to this proper regulatory body in Nebraska. TransCanada learned a hard lesson today, never underestimate the power of family farmers and ranchers protecting their land and water."

It will be impossible to determine whether this project is in the national interest until Nebraska approves a route for the pipeline.  The PSC route may differ markedly from the controversial route proposed through the Governor’s expedited process. If so, the new route will need to be fully evaluated by state and federal authorities. Finally, this is the latest sign that this dangerous project should be firmly rejected by the president. The risks are too high, and there’s no payoff for anyone other than the tar sands industry.


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GuthrumFeb 20 2014 12:51 PM

I understand and see both sides of this issue. But the price of gas is creeping up again and people will be really upset if it gets near $5 a gallon. Gas price increases result in higher food prices. Food is already high enough. Many of us must have our cars to get to work. Many people depend on cars and trucks to earn a living. I can't get to work on a bicycle, golf cart, trolley car, cable car, light rail, or rickshaw. I can't afford a new Volt or Tesla. This is why I think that this judge's decision is misguided, ill timed, unfair, and costly: another decision from some activist judge. It needs to be overturned.

Anthony Swift Feb 20 2014 12:57 PM

I understand your concern and you should know that one thing that State has been very clear on is that Keystone XL will not lower gasoline prices. In fact, according to its models, gas prices are a penny or two lower if Keystone XL is rejected.

Keep in mind, right now, oil prices in the Midwest are low - a barrel of Canadian tar sands is around $60 a barrel while a barrel of crude at the Gulf Coast is around $100. Keystone XL will increase Canadian tar sands prices by about $20 a barrel in the Midwest, while having little affect on Gulf Coast prices (because the Gulf Coast is connected to the much larger global market).

GuthrumFeb 20 2014 04:38 PM

Anthony - thanks for your reply and the helpful information.

James TyrerFeb 20 2014 04:38 PM

The current lower prices for Canadian Syncrude, and Bitumen and US Bakken crude are due only the the transportation cost differences from not having a pipeline and having to ship by rail. This is only cents per gallon of gasoline.

fred schwiegerFeb 20 2014 08:07 PM

its nice to see that finally after years of free rain, this industry is answereing for some of the issues that they have shared with this planet and people. lobbying the government for lax laws and propaganda to the public to cover the truth all for cash is starting to catch this industry. investors are starting to think twice in investing in a industry that is doing so much and so little. this has become a bad place for long term investment. people want accountability and that will cost money. a smart investor will invest in something that the public is going to support. an industry that pollutes air, water, ground and hurts and kills people. even though they pay for the best to hide there practices, has become a poor investment. and its been done to themselves. if you wish let the pipeline cross your land for short term cash but pray for your kids. I am praying for mine..

Michael BerndtsonFeb 21 2014 08:59 AM

Not to sound like Johnny one note here on Switchboard, but... Enough tar sands can cross the border between Canada and the US for at least 10 more years before full capacity is reached, in the existing cross border trunk lines. Rail is moving ahead swimmingly with new loading facilities being built in Canada, as we read about the doings of Keystone XL. And of course there is the great state of Illinois. The state controlled by neo-liberals, politician/ministers and commodity traders in the northeast corner and industrial agriculture and fossil fuel transportation concerns in the rest. Oh, I forgot, much of the agriculture land downstate is owned by the folks in the northeast corner of the state. For either investment purposes or for entertaining clients during hunting season on their 15,000 acre landed gentry estates. Illinois is quietly becoming the tar sands pipeline and rail junction for the United States and the world.

Chicagoland refineries are getting around 500,000 barrels per day tar sands diluted bitumen and another 500,000 barrels per day go elsewhere in the Midwest or Gulf. Then this year the Flanagan south pipeline will take an additional 500,000 barrels per day from the cross boarder Enbridge main trunk line (rated at 2.5 million barrels per day) and route the goo back to Cushing, Oklahoma to connect with the already completed Keystone XL south.

For some reason it seems like environmental policy dudes and dudesses are focussed on Keystone XL like France put focus on the maginot line for an eastern defense against a German invasion. Despite all the efforting, the Germans just went around it. Oil sands (or tar sands) producers and pipeliners are doing about the same. The stuff is flowing like crazy with or without Keystone.

What could stop production is if Canadian groups like Pembina and others really puts focus on that messy mess called in situ steam thermal extraction. Since strip mining will soon become a thing of the past, having most of the tar sands produced with in situ steam will turn the Boreal Forest into giant surface tar pit. Sadly, many of Canada's environmental groups are simply fronts for tar sands development.

jim wizzFeb 21 2014 03:36 PM

when you agree with obama you lose either way...his cronies have brainwashed these people they fight for a scare tactic

eyeRollzFeb 22 2014 04:01 PM

The pipeline will not affect US gas prices or availability. It is simply a way for Canada to get their gas to the gulf shipping easier; and it's for foreign sales. Not for sales to the US. The only impact to the US are the temporary jobs building the pipeline and the mess if/when it breaks.

leaverne nobleFeb 23 2014 02:31 AM

I agree with Michael because he is exactly right and it will poison the land and the water some of you are correct but Michael is right on it he hit the nail on the head thanks Michael for the history on this tar sands issue love you for that because everyone needs to know the truth thanks a lot yo sista in truth! holla back at a sista,holla back,holla

CKFeb 23 2014 04:03 PM

moving crude across via rail is very risky.. as i've read this particular oil is highly combustible. We all know that our infrastructure is in desperate need of repair, this is especially true transporting oil. The problems with the pipeline are evident, ground water contamination, chemicals making people sick.. that won't be different should shipments be moved by rail. I know I need more information and so should the public at large.. This discussion is far from over. I applaud Nebraska's decision.

Wendy MorelliFeb 23 2014 11:19 PM

i am happy Nebraska won.I am sad to hear Michael say there is a whole lot more, but it certainly deserves investigation.I don't agree this Pres. is worse than his former opponent- but I actually don't think that is what you were saying as much as saying the environment needs a much more vigorous defense and our eyes need to be open and we must send a strong message we are watching EVERYTHING they do to the land and water-not just what people are jumping up and down about as the flavor of the week.Point taken for sure.Still I am going to count this as a preliminary victory but we're still in the first quarter,,,

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