Nebraska lawsuit delays decision on Keystone XL

2014-04-18T14:15:00Z 2014-05-01T21:18:52Z Nebraska lawsuit delays decision on Keystone XLBy NICHOLAS BERGIN / Lincoln Journal Star JournalStar.com

The U.S. State Department on Friday announced yet another delay in the Keystone XL pipeline permitting saga.

State Department officials said a challenge to Nebraska’s pipeline siting law, which has been taken up by the state Supreme Court, has called into question the path the pipeline would take through Nebraska. The department has extended a 90-day comment period for federal agencies indefinitely -- until the Nebraska route has been determined.

TransCanada needs a presidential permit to build the 36-inch-diameter, $5.4 billion crude oil pipeline from Hardisty, Alberta, to Steele City because it crosses an international border. The application process calls for eight federal agencies to comment on whether the pipeline would be in the national interest before Secretary of State John Kerry or President Barack Obama can decide whether to issue a permit.

Dave Domina, the Omaha attorney representing three landowners who challenged Nebraska's hastily passed pipeline siting law, said the Supreme Court’s schedule makes it highly unlikely the case will be resolved before the November midterm election.

“This is a great example of the problem of having haste make waste,” Domina said. “TransCanada and the Legislature acted in haste to enact LB1161, after the hearing process, with four amendments, without debate, and unfortunately the legislative product produced is under serious question.”

Rep. Lee Terry, an Omaha Republican, condemned the State Department announcement as political shenanigans. 

“Yesterday, the president had the audacity to stand at the podium at the White House press office and lecture Republicans in Congress about the need to make tough decisions," Terry said in a news release. "But today, he punted a tough decision in the name of political expediency.”

In a conference call with reporters Friday afternoon, senior State Department officials, who did not want to be named, denied political motivation.

TransCanada President and CEO Russ Girling called the delay inexplicable in a news release.

“We are extremely disappointed and frustrated with yet another delay,” Girling said. “We are also disappointed the United States will continue to rely on suspect and aggressive foreign leaders for the eight to nine million barrels of oil that is imported every day. A stable, secure supply of oil from Canada and from the U.S. makes better sense and I am sure a majority of Americans agree.”

A coalition of property rights advocates, environmentalists and Indian tribes have worked to cast the pipeline as a symbol of pollution and corporate greed, and a danger to water supplies, including the vast Ogallala Aquifer.

Both opponents and supporters of the pipeline found points to rally around in an Environmental Impact Study of the pipeline released by the State Department in January.

Lancaster County District Judge Stephanie Stacy in February ruled that Gov. Dave Heineman’s approval of the proposed route was done under an unconstitutional 2012 law (LB1161), which also gave the governor the ability to confer on TransCanada the ability to use eminent domain to take property for a public project.

The law gave authority to site major pipelines to the Nebraska Department of Environmental Quality as an alternative to the state Public Service Commission, a five-person commission that regulates grain warehouses, telecommunications infrastructure and railroads, among other things.

If the court challenge stands, it remains unclear whether enough of the law would remain intact for TransCanada to go through the process with the Public Service Commission or if the Legislature would have to pass a new law.

The federal State Department officials said Friday that movement of the Nebraska route could have implications for environmental, economic, cultural and issues addressed in the study, as well as for the comments made by other federal agencies.

It’s unclear whether all or parts of the study would need to be redone if the state Supreme Court upholds the lower court’s decision. State Department officials said that will depend on whether or how much the pipeline route is moved.

While the court case is being sorted out, the State Department plans to continue its review of 2.5 million public comments submitted on the national interest determination for the pipeline.

Officials called the number of comments submitted unprecedented and said previous pipeline applications had attracted as few as 100 comments.

Jane Kleeb of opposition group Bold Nebraska said TransCanada’s South Dakota permit for the pipeline will expire June 20 and the reapplication process could take six months to a year.

Reach the writer at 402-473-7304 or nbergin@journalstar.com. Follow him on Twitter at @ljsbergin.

Copyright 2015 JournalStar.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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