Nebraska Supreme Court to Hear Landowners’ Keystone Pipeline Challenge
April 5, 2018
All is not so quiet on the home-front for the Keystone Pipeline, slated to trek across Nebraska. While mainstream media seems to have put the topic on the back burner, Nebraska groups opposed to the pipeline still believe the 36-inch pipeline, carrying crude oil just above the Ogallala Aquifer, is nothing short of a disaster in the making.
After nine years of battling TransCanada, the company at the forefront of building Keystone XL, 71 Nebraska landowners are hoping that the legal challenges may keep the company from building its pipeline from Alberta, Canada to Steele City, Nebraska, carrying 830,000 barrels per day, more than 1,179 miles.
The landowners are quick to point out the benefits don't even come close to outweighing the concerns. TransCanada has touted jobs and revenue, but those opposed to the pipeline say the numbers don't add up. The fight has become so personal, that some land owners have given up retirement plans to fund the lobbying bill. And TransCanada has put up its own fight, lobbying for the pipeline, spending close to $900,000 between 2011 and 2015 alone.
The tone surrounding the pipeline has changed, since its introduction during Barack Obama's two terms. Twice rejected under his administration, President Donald Trump's pro-industry stance has taken it out of the national spotlight. Trump approved Keystone XL last March, but while the battle may not have the spotlight on it, it is heating up again.
Last November, in a three to two vote, the Nebraska Public Service Commission (NPSC) rejected TransCanada's preferred route but okayed an alternate path. With that new route comes new easement and new landowner legal battles.
Brian Jorde, one of the attorneys for Nebraska landowners living in the pipeline path, said NPSC's decision was the "worst decision possible for TransCanada." But TransCanada is not showing any signs of giving up, yet.
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The Nebraska Supreme Court decided it would hear TransCanada's appeal of the SPSC's alternate route. Attorney Dave Domina told reporters he's not surprised by the decision, but added that he has a solid case challenging TransCanada's $8-billion project.
"We think the Public Service Commission approved a route on a 2-to-2-to-1 vote that was never applied for," Domina shared in a radio interview with Nebraska Radio Network.
Bold Nebraska founder, Jane Kleeb, says TransCanada's support is waning. The company announced commercial support of just 500,000 barrels-per-day (bpd) from shippers for its proposed 830,000 bpd-capacity Keystone XL pipeline — including a 20-year subsidy of 50,000 bpd directly from the Canadian government.
"The Keystone XL pipeline will never be built," said Kleeb. "TransCanada clearly does not have the support necessary for this project, since the company could secure just 500,000 bpd of commitments from shippers on its 830,000 bpd-capacity pipeline — and that's only with a giant subsidy gift directly from the Canadian government. What's more, the landowners' lawsuit challenging the Nebraska Public Service Commission's approval of an *illegal* pipeline route is still set to be heard."
The filing from landowners' attorneys with Domina Law Group triggers a process that will begin with the creation of a full record and transcript of the Nebraska PSC intervenor hearings and legal proceedings, according to Kleeb. If the landowners' case is successful, TransCanada would be compelled to file an entirely new permit application with NPSC, triggering another review process that could take up to a year.
In another plot twist, the Nebraska Supreme Court ruled March 9 that TransCanada does not have to pay the legal bills for the 71 landowners who have been fighting the eminent domain cases filed by the Canadian firm.
The court, in a 13-page ruling, said the landowners failed to offer sufficient proof that they owed specific fees to their Omaha attorneys, Dave Domina and Brian Jorde.
The attorneys argued that TransCanada owed them about $350,000 for representing landowners in several counties in eminent domain lawsuits, which were filed in 2015 by the pipeline company, then later dismissed.
The southern portion of Keystone XL is in operation from Oklahoma City to oil refineries along the Gulf Coast in Texas. Arguments for the pipeline have taken a hit with three major leaks in the existing keystone lines.
A total of 210,000 gallons of oil leaked last year from the Keystone Pipeline in South Dakota, near the town of Amherst, according to TransCanada.
Brian Walsh, a spokesman for the state's Department of Environment and Natural Resources (DENR) said it is the largest Keystone oil spill to date in South Dakota. The leak came just days before Nebraska officials announced its decision on the proposed line.
That leak prompted Sen. Troy Heinert, D-Mission, SD, to offer Senate Bill 163 that would have required South Dakota's environmental agency to test crude oil spill sites and share that information with the public. SB 163 failed in committee, as did two other 2018 measures seeking to regulate pipelines.
Heinert and Sen. Jason Frerichs, D-Wilmot, reached out to the South Dakota DENR and found out that TransCanada and its contractors, not DENR, were responsible for testing and sampling at the spill site.
The Senate measure would have required DENR to test any substance spilled, the ground and the closest water source, with its findings released to the public.
"Is it DENR's job to take TransCanada's word for it, or is it DENR's job to say, 'You know what, we're going to test this ourselves. And we're going to release this to the public?'" Heinert asked the Senate Commerce and Energy Committee. "That's all we're asking."