Nebraska landowners have a long legal battle ahead even if President Barack Obama vetoes a bill that would approve the controversial Keystone XL pipeline, opponents of the $8 billion project said Wednesday.
About 90 Nebraska landowners along the more than 300-mile proposed path through the state are embroiled in condemnation proceedings started by TransCanada in January to acquire easements for building and maintaining the pipeline. TransCanada says it already has 90 percent of the easements it needs in Nebraska and all of those it needs in South Dakota and Montana.
A majority of the 90 landowners who have not signed easement agreements have banded together and filed two lawsuits in Holt and York counties seeking to challenge TransCanada’s right to use eminent domain and the law that let former Gov. Dave Heineman approve the project’s Nebraska route.
Last week, Holt County District Judge Mark Kozisek approved a temporary injunction putting on hold TransCanada's ability to proceed with condemnation of land in nearly 40 cases. TransCanada has said it wants all of the cases in Nebraska to be paused until the legal wrangling has concluded.
The York County lawsuit includes more than 20 landowners and is set for a hearing Thursday, when attorneys are expected to request an injunction like that granted in Holt County.
TransCanada agreed not to protest the injunctions, but also asked that the legal cases, which likely will end up before the Nebraska Supreme Court, be fast-tracked.
Ken Winston, an attorney and lobbyist for the Nebraska Sierra Club, said Wednesday that based on past experience it could take as long as two years to get an answer from the state Supreme Court regarding the latest constitutional challenge to the law for routing major oil pipelines.
A 2012 law let TransCanada’s pipeline route application bypass the state Public Service Commission, which oversees designated common carriers including railroads, natural gas pipelines, taxicabs and grain warehouses.
“It’s all about the legality of the use of eminent domain and when a private, in this particular case foreign, company can use eminent domain,” Jane Kleeb, director of the energy activist group Bold Nebraska, said Wednesday at a news conference with Winston.
Omaha Sen. Ernie Chambers has introduced a bill (LB473) that would stop foreign companies from using eminent domain.
Landowners' lawsuits argue that the 2012 law violated the Nebraska Constitution. A previous suit was thrown out last month by the state Supreme Court because three of the seven judges said those who filed the lawsuit lacked legal standing to do so. Constitutional challenges require a supermajority of five judges to strike down legislation as unconstitutional.
Omaha attorney Dave Domina, who represents landowners, has said the plaintiffs in the new lawsuits will meet the standing requirement now that condemnation proceedings have been filed.
The Keystone XL has become a symbol of the ongoing conflict between pro-oil-industry interests who want to bring the diluted bitumen from Canada to market and environmentalists who say it would hasten development of Canada’s tar sands and climate change, as well as put public water and lands at risk of oil spills.
The pipeline would carry up to 830,000 barrels of the heavy crude oil a day from Alberta to Steele City near the Nebraska-Kansas border. From there it would be pumped through existing pipelines to U.S. refineries along the Gulf Coast.
The Republican-controlled Congress has passed legislation to approve building the Keystone XL across the border between the United States and Canada. Congressional leaders plan to send it to Obama’s desk later this month.
Obama has promised to veto the legislation, saying it would circumvent the ongoing presidential permit process. That process is in its final stages, with the U.S. State Department preparing a national interest memo for the president to review.
Kleeb said there is a chance both the memo and the bill could land on the president's desk within days of each other. Bold Nebraska, along with a coalition of property rights advocates, environmentalists and American Indians have urged Obama to reject the pipeline.
Regardless of his decision, she said, the legal issues in Nebraska will continue.
“On a political level, we certainly are telling the White House and anyone that will listen to us, the president doesn’t have to wait to reject the pipeline because of what is happening in Nebraska,” she said.
With ongoing Bakken oil development in North Dakota and oil sands in Canada, Nebraska could see more pipeline proposals, Kleeb said, calling on Nebraska lawmakers to create an energy corridor that would limit where major oil and gas pipelines that pass through the state can be built.