Brief Filed in Nebraska Keystone Pipeline Battle
April 19, 2018
Nebraska landowners in the TransCanada proposed Keystone XL pipeline path jumped on the legal battle April 16, with their attorney's filing a 45-page brief with the Nebraska Supreme Court asking that the Public Service Commission's (PSC) approval of the alternative route be nullified.
PSC approved the pipeline path, but Omaha attorneys, David Domina and Brian Jorde said the Court should reverse the decision and deny the application for a number of reasons, including the fact that the approved route was not even one TransCanada had applied for.
While TransCanada's original 275-mile preferred route met with legal opposition last August, the PSC voted 3-2 on Nov. 20 to approve a slightly longer route known as the "mainline alternative."
The new route is farther east than the original. It runs parallel with the existing Keystone pipeline for about 95 miles and crosses 11 Nebraska counties: Keya Paha, Boyd, Holt, Antelope, Madison, Stanton, Colfax, Butler, Seward, Saline and Jefferson.
The landowners' attorney also filed notice to the Nebraska Attorney General's office that his clients will raise a number of constitutional questions over the state's Major Oil Pipeline Siting Act.
Domina wrote in the brief that the Act, which provides for a "public hearing" with no hearing officer and testimony that isn't given under oath, denied them due process. In addition, a state statute that declares the construction of major oil pipelines "in the public interest" is an unconstitutional invasion of the PSC's authority.
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The pipeline, which has been touted as a job and revenue generator, is nothing short of an expense to the state, according to the landowners' brief. The final count would be six to 10 permanent jobs in Nebraska, and the long-term costs would outweigh the short term, according to Domina.
In addition to no financial benefits, Domina said TransCanada has failed to meet its burden of proof that the route would serve the public interest.
"No portion of any KXL tar sands is contracted to be allocated or delivered to Nebraska or used within Nebraska," Domina said. The $8 billion, 1,179-mile pipeline would transport Canadian crude through Montana and South Dakota to Nebraska, where it would connect with lines to carry oil to Gulf Coast refineries.
"If TransCanada has its way, the pipeline with its sludge inside, will waste in Nebraska's soil until landowners and taxpayers left with the mess must remove it," Domina wrote. "TransCanada will be long gone. But, its authority over and legal interest in the abandoned route, and land dividing farms and ranches is perpetual and would remain — in perpetuity."
But TransCanada officials have a completely different take.
"The project is expected to generate tens of millions of dollars in local tax revenues, supporting first responders, schools and hospitals, as well as roads and other local infrastructure," according to a TransCanada press release.
A company spokesman for TransCanada said the developer plans to meet this week with landowners and will start aerial surveying of the route in Montana, South Dakota and Nebraska.
The company said it had successfully secured approximately 500,000 barrels per day with 20 year commitments, positioning the proposed project to proceed. According to TransCanada, interest in the project remains strong, and the approved route was based on a comprehensive review of the evidence submitted by all parties in the hearing process as well as state agencies to ensure it has a minimal impact to the public and to Nebraska's natural resources.
"Over the past 12 months, the Keystone XL project has achieved several milestones that move us significantly closer to constructing this critical energy infrastructure for North America," said Russ Girling, TransCanada's president and chief executive officer.
According to a press release, the company said there are plans to continue to reach out to the communities where the pipeline will be constructed and company employees are working "collaboratively with landowners in an open and transparent way to obtain the necessary easements for the approved route."
Ron Schmidt, Madison County commissioner, told reporters that some people in the area are "enthusiastic" about the pipeline, and that he views the project as an economy boost.
"I've talked to landowners who want the route to move just a little so it can go through their property."
But many of the landowners say the potential impact on the Ogallala Aquifer is a risk not worth taking,
The brief can be read at https://www.dominalaw.com/documents/Appellants-Landowner-Intervenors-Opening-Brief%E2%80%8B.pdf