Gov. Dave Heineman is calling on President Barack Obama and Secretary of State Hillary Clinton to deny a permit to TransCanada to build a 36-inch petroleum pipeline through the Nebraska Sandhills.
In a letter sent on Wednesday, Heineman cited concerns about potential oil spills and contamination of the Ogallala Aquifer as grounds for denial.
"I want to emphasize that I am not opposed to pipelines," the governor said. "We already have hundreds of them in our state. I am opposed to the proposed Keystone XL Pipeline route because it is directly over the Ogallala Aquifer."
Heineman's letter was quickly praised by fellow Nebraska Republican U.S. Sen. Mike Johanns, Republican U.S. Rep. Jeff Fortenberry and groups opposing TransCanada's routing choice for connecting the oil sands of Alberta with refineries along the U.S. Gulf Coast.
But almost as quickly, the letter stirred up debate between Johanns and his Democratic counterpart, Ben Nelson -- who also wants the pipeline moved -- on whether routing oversight on the Keystone XL was a matter of state or federal authority.
Johanns said the federal Interstate Commerce Clause of the U.S. Constitution gives that authority to federal officials. The commerce clause says Congress has power "To regulate commerce with foreign nations, and among the several states ..."
"I just don't think states can pre-empt the commerce clause by legislative action at the state level," he said.
Nelson said a 2010 analysis by the Congressional Research Service and the final environmental impact statement released by the State Department on Friday put the ball in the state's court.
"The state has the responsibility for location, and the State Department has the responsibility for pipeline safety issues," he said.
Furthermore, said Nelson, it's up to Heineman to propose a suitable alternative for the Nebraska portion of the route.
"Now, if the state chooses not to offer and if the governor chooses not to offer a suitable alternative, then they're acquiescing to that location."
Heineman was unavailable for comment on Nelson's views or on his letter later Wednesday.
If routing authority doesn't get past the finger-pointing stage, TransCanada could still get its permit by the end of the year and proceed with construction in 2012.
But the governor's letter still was welcomed by opposition groups as they look ahead to a final round of public input to the State Department on the project in meetings in Lincoln Sept. 27 and Atkinson Sept. 29.
Stuart rancher Susan Luebbe said she was "stunned" by Wednesday's news.
"I didn't think he would do anything until it was over," she said of Heineman.
Ken Winston of the Nebraska chapter of the Sierra Club said state and local officials are better informed on natural resources and how to protect them than their federal counterparts.
"We'd be glad to help the governor do what he can do," Winston said, "rather than depending on the federal government to make the right decision."
Luebbe wants to see the governor and state lawmakers shoulder pipeline responsibilities. "Just don't give us landowners a bunch of lip service," she said. "Do what you need to do."
Johanns wasn't offering that advice.
"If each state has the power to site pipelines," he said, "then we could simply say we don't want pipelines anywhere except in the eastern 100 miles of this state."
Under those conditions, how could any company, for example, get a pipeline built from Montana to Florida? "If you adopt that view, you'd never build another pipeline," he said.
He noted that the State Department laid out its consideration of more than a dozen route alternatives in its final environmental-impact statement.
If that approach is being cast aside now, "I think somebody is trying to lay it off on the state."
Winston, however said states could and should assert reasonable control in adjusting pipeline routes. To suggest that a pipeline "couldn't enter a state or that it had to enter the state at a strange angle, I don't think that would fly.
"But I think if it's based on rational criteria ... I see no reason why it wouldn't pass constitutional muster."
State Sen. Chris Langemeier of Schuyler, chairman of the Legislature's Natural Resources Committee, was a pivotal presence in the 2011 legislative session in steering clear of routing authority.
He also cited the Interstate Commerce Clause on Wednesday as a barrier to Nebraska passing legislation that might say "you can't go through XYZ county or you can't go through the Sandhills."
Heineman has said previously there's no point in calling a special legislative session to deal with the issue, because there's no reason to think legislative thinking has changed.
"At this point, the circumstances around what we can do as a state have not changed," he said. "So I don't know what we would accomplish in a special session that would change where we are today."