YORK -- Susan Dunavan said signing documents Thursday morning in York County District Court was one of the most exciting things she's ever done.
With signatures in place, Judge Mary Gilbride approved a temporary injunction staying TransCanada’s condemnation proceedings against landowners who are part of a lawsuit. The suit challenges the Canadian company's ability to force land agreements for the $8 billion pipeline that would cross Nebraska en route from Canada to oil refineries along the U.S. Gulf Coast.
The move was expected in the wake of a similar Feb. 12 ruling in Holt County and was another step forward in what is likely to be a long legal challenge.
“I know the war is not won yet, but it’s a start,” Dunavan said after the hearing. “We’re doing this not just for ourselves. We’re doing this for future generations of the state. We’re doing it for agriculture. We’re doing it for whoever owns the land and drinks the water.”
Dunavan is the lead plantiff in one of two landowner lawsuits challenging the state law that gave TransCanada eminent domain powers and let former Gov. Dave Heineman approve the proposed pipeline route in Nebraska.
TransCanada wants to lay 1,179 miles of pipe from Hardisty, Alberta, to Steele City, Nebraska, where it would hook up with an existing pipeline. It would have a capacity of 830,000 barrels a day.
The pipeline would stretch 275 miles across Nebraska and a quarter mile across land Dunavan and her husband, Bill, spent 30 years paying off and painstakingly restored to prairie.
The landowner lawsuits allege Nebraska’s 2012 pipeline routing law violated the state Constitution by allowing TransCanada to bypass the Nebraska Public Service Commission, a five-person board that regulates common carriers including grain warehouses, taxi cabs, railroads, natural gas pipelines and telecommunications.
Landowners filed the lawsuits in York and Holt counties in January after a previous lawsuit failed.
The previous suit made it to the Nebraska Supreme Court, which split in a decision over whether three landowners had the legal standing as taxpayers to challenge the pipeline routing law. The high court fell one vote short of the five required to address issues of constitutionality, and the law stood by default.
The landowners’ attorney, Dave Domina, plans to take the new suits back to the Supreme Court. This time, he said, the plaintiffs will meet the legal requirements to have the case heard because they filed as landowners being damaged by TransCanada’s actions rather than as taxpayers.
Success would void TransCanada’s path in Nebraska and the condemnation cases, but not stop the project.
“Then the Legislature would have to go back to work or TransCanada has to use what remains of the law to go to the Public Service Commission,” Domina told a group of about 20 people after the Thursday hearing. “But for right now, pressure is off you landowners."
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Before the hearings this month, attorneys for both sides agreed to ask for stays in the process. Part of the agreement included an accelerated trial schedule to expedite a conclusion to the case.
“This was a mutual agreement. We too want clarity and finality,” TransCanada spokesman Mark Cooper said in an email after the Holt County hearing. “TransCanada believes the laws at issue in the case are valid and its actions are proper. But TransCanada respects the Nebraska legal system and process.”
TransCanada has about 90 percent of the easements it needs in Nebraska and all it needs in Montana and South Dakota. To get the remaining 10 percent in Nebraska, the company has fewer than 80 active condemnation cases but has filed requests to stay those proceedings while the constitutional challenge is sorted out, including for people who are not part of the lawsuits.
Plaintiffs have been added to the landowner lawsuits several times, and as of Thursday there were 40 on the Holt County suit and 23 on the York County suit.
TransCanada’s Omaha-based senior manager, Andrew Craig, said in an interview Wednesday that the decision to stay the cases “goes back to our core value of trying to treat everyone fairly.”
Republicans in Congress made the Keystone XL pipeline a top priority this year, passing a bill that would have approved its construction.
President Barack Obama vetoed the bill Wednesday, asserting his authority to decide whether to approve a permit for its construction himself.
TransCanada needs the permit to build across the border between the United States and Canada. The U.S. State Department is working to finalize a memo on whether construction of the pipeline would be in the national interest, after which Obama will make his decision.
Republicans, labor supporters and the energy industry say building the pipeline would create jobs, spur economic growth and lessen North America’s dependence on Mideast oil sources.
Pipeline fighters contend the Keystone XL will trample individual landowner rights, endanger public water and boost greenhouse-gas emissions, fueling climate change.
Even if Obama rejects the permit, the legal cases in Nebraska will continue, said Jane Kleeb, head of the anti-pipeline group Bold Nebraska.
“This is much bigger than Keystone XL," she said. "This is about how pipelines are routed and approved in our state and the use of eminent domain powers.”