Opponents of the Keystone XL pipeline filed a lawsuit with the Nebraska Supreme Court on Wednesday challenging the constitutionality of the pipeline siting law passed in the 2012 legislative session.
In a statement announcing legal action Wednesday morning, the opposition group listed four causes of action for trying to block implementation of the results of a bill introduced by Sen. Jim Smith of Papillion.
Among them are claims that LB1161 violates separation of powers and that it delegates authority for regulating the controversial pipeline to the Nebraska Department of Environmental Quality, even though the constitution assigns that task to the Nebraska Public Service Commission.
Omaha attorney David Domina, who filed the legal challenge on behalf of three clients, said the objective goes beyond stopping the pipeline.
“This lawsuit is designed very much to ensure that the constitution is honored by what the Legislature enacts,” he said during an afternoon media briefing.
The 13-page suit names landowners Randy Thompson of Martell, Susan Luebbe of Stuart and Susan Dunavan of McCool Junction as plaintiffs and Gov. Dave Heineman, State Treasurer Don Stenberg and DEQ Director Mike Linder as defendants.
Linder’s staff is working with pipeline builder TransCanada on an alternative route around the Nebraska Sandhills, and the company is awaiting action on a presidential permit request filed with the U.S. State Department.
All three plaintiffs own land along the original pipeline route.
President Barack Obama denied the initial request for the federal permit, because Nebraska had yet to pick an alternate route.
The $7 billion, 1,700-mile Keystone XL would connect the oil deposits of Alberta, Canada, with refineries along the U.S. Gulf Coast.
Thompson, whose family owns land near Central City, has been an opposition leader in Nebraska for much of the three-plus years the project has been under state and federal scrutiny.
He said Wednesday his efforts to stop the project go back to 2007, when TransCanada sought him out about an easement. That eventually led to threats to condemn the property and impose eminent domain authority.
“I think for me the last straw was passage of LB1161 and the way it dismantled eminent domain protections for landowners in Nebraska – and the idea that a foreign corporation could actually come into the state and start condemning Nebraska properties when the same company doesn’t even have a permit to operate in our country.”
Luebbe said she wants a piece of the legal action even though it now appears the alternate route would be 18 miles from her ranch.
"We fund senators to do a very good job, and this fell through the cracks big-time this year,” she said.
A spokeswoman for Gov. Dave Heineman said he was out of the state Wednesday and unlikely to have any comment until at least Thursday.
Linder declined comment.
“The lawsuit was just filed today,” he said, “and we haven’t had a chance to look at it. Any responses will be coordinated through the attorney general’s office.”
TransCanada spokesman Grady Semmens said the lawsuit is between landowners and the state.
“We continue to work collaboratively with the Department of Environmental Quality on defining a new route for Keystone XL that avoids the Sandhills.”
Brad Stevens, Lincoln-based state director of Americans For Prosperity, said the pipeline review was “the proper role and function” of DEQ and that pipeline opponents are “grasping at straws.”
Those who argue against the energy security and jobs it offers “put ideology ahead of what’s best for the country,” he said.
In responding to questions earlier, plaintiff attorney Domina said it’s rare for the state Supreme Court to take a case that hasn’t worked its way up through the Nebraska court system.
He said he had filed it also in Lancaster County District Court as a back-up.
The high court could decide whether to intervene as soon as next week, he said. If it does take the case, arguments could be seven to eight months away, and a decision could take another eight to nine weeks.
Domina said a favorable decision from the court would send matters back to the Legislature.
If LB1161 is found unconstitutional, LB1, passed in the 2011 special session, would be back in effect and its designation of the Public Service Commission as the review authority would be in force.
Domina said pipeline opponents aren’t trying to stop DEQ review of the project, which already has logged public meetings in O’Neill, Neligh, Albion and Central City.
In fact, they prefer that it go forward. He said that review underscores the lack of standards and the “directionless” response of the agency in making a recommendation to the governor on an alternate route.
Linder gave a different portrayal of the community meetings as he looks ahead to a public hearing somewhere along the alternate pipeline corridor.
“We did get a lot of good comments,” he said, “and we’ll take what we learned and go out and visit some folks’ property along the route who have asked us to come out and look at some feature.”