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Nebraska Sen. Mike Johanns suggested Thursday that TransCanada is "way out there on a limb" with its plans to use eminent domain to acquire easements without having federal permits in hand to build its Keystone XL pipeline.

Johanns used his weekly media conference call to respond to last week's announcement from TransCanada that it would make a last easement purchase offer to landowners in Nebraska and other states before turning to land condemnation procedures.

Johanns, who objected to that strategy in August in a letter to TransCanada President Russell Girling, continues to regard eminent domain action as out of line.

He said he is not trying to offer legal advice.

"But it just occurs to me: How do you legally proceed when you don't have a legal right arising out of a permit? I mean, you can't build the pipeline until you get a permit. Therefore, how can you acquire an easement for a project for which there is no permit?"

Keystone XL would link the oil-rich tar sands of Alberta with refineries along the U.S. Gulf Coast.

But TransCanada's plans have attracted strong opposition in Nebraska from landowners and environmental groups worried about the effect on the Sand Hills and the Ogallala Aquifer.

Nonetheless, a TransCanada spokesman said the company wants to finish easement acquisition work in anticipation of permit approval from the U.S. State Department by the end of the year.

That would keep its commitment to enhance U.S. energy security and allow construction crews to make a strong start in burying the 36-inch line in early 2012.

In assessing that strategy, Johanns said he has no clue when the State Department might act, but said TransCanada officials act like they do.

"They're acting like the permit has been granted," he said.

Reached for comment later Thursday, TransCanada's Jeff Rauh said, "we made a commitment to keep the lines of communication open, and we've done that.

"We value our relationship with Senator Johanns," Rauh added. "It's important to us, and we continue to work with him."

Rauh declined to comment further on any earlier understanding with Johanns about eminent domain.

The letters TransCanada began sending last week cite a 30-day timetable for a response.

One such letter obtained by the Journal Star dated April 7 said, "after that period, we will initiate the eminent domain process. To avoid litigation, we are offering an amount for the easement that exceeds the value of the rights we seek."

Johanns tried to discourage that approach.

"Let the permit process go through," he said. "There's bound to be something come out of that."

While calling on TransCanada to back off, Johanns did not use as part of his argument a report from the Congressional Research Service that pipeline opponents circulated in March.

Its authors assert that states have substantial authority over such matters as siting petroleum pipelines and shaping eminent domain policy.

Johanns said the report "raised more questions than it answered."

In particular, he said, he doesn't see how it squares with the Interstate Commerce Clause in the U.S. Constitution.

If states, as opposed to the federal government, had authority on siting, they could turn a pipeline route into the equivalent of a pretzel.

As a hypothetical example of how that approach could unravel, TransCanada might want to build a pipeline that enters Nebraska at Scottsbluff, he said, "but we decided it needs to enter down in the Benkelman area."

With that example in mind, "you begin to see how problematical that is relative to the Commerce Clause." 

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Reach Art Hovey at 402-473-7223 or at ahovey@journalstar.com

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