Nebraska Supreme Court justices honed in on key arguments Thursday, pelting attorneys on both sides of the battle over the proposed Keystone XL pipeline with questions.

Those against TransCanada’s project — landowners, the Ponca Tribe of Nebraska, the Yankton Sioux Tribe and the Sierra Club — attacked on a dozen fronts in briefs.

But in court, the arguments distilled to one main point: jurisdiction.

Omaha attorney David Domina, who represents landowners, contends that the Nebraska Public Service Commission, which approved the pipeline's mainline alternative route, shouldn't even have been considering the application.

State statute is clear, he said. The PSC only considers applications after they are denied by the governor, he said.

Chief Justice Michael Heavican jumped in, asking Domina if his ultimate argument was that if a project gets approval from the governor, like this one did, it didn't have to go to the PSC.

No, Domina said.

"Our argument is simply this: Without a denial, the Public Service Commission can't act. That's all," he said.

Justice Jonathan Papik asked why the statute couldn't be read to say that if a pipeline carrier is going to build a pipeline and hasn't gotten approval from the governor it can't just start constructing it before getting approval from the commission.

Papik said that's what the language seemed to say to him.

Domina said that's the essence of his argument.

"And I think that's why we win this case on jurisdiction," he said.

Domina argued that, without route approval, TransCanada and the Public Service Commission got ahead of themselves. The mainline alternative, the route approved by the commission, wasn't the same route approved by the governor.

But Assistant Nebraska Attorney General David Lopez, who represents the PSC, argued that the appeal fails for three reasons.

First, he said, it's foreclosed by the Supreme Court's own interpretation in a previous case of the function of the statutory scheme at issue here. It's also inconsistent with the constitutional, statutory authority the commission has over pipeline siting, he said.

"And third, it would produce the absurd result that an entire subset of pipelines could never be built in Nebraska," Lopez said.

TransCanada didn't have to amend its application to the route ultimately approved, he argued, because the PSC advanced two routes early on in the process.

But Justice Jeffrey Funke asked if notice was given to those along the mainline alternative route, which was ultimately approved.

Counties and towns along the route were notified, Lopez said.

"What notice was given to the landowners on the alternative route?" Heavican asked.

Lopez said the PSC isn't required to give notice to "every conceivable entity along the route." What it requires is general publication in a newspaper and a notice to governmental subdivisions, he said.

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But, Lopez said, the fact that the notification was adequate was "illustrated by the fact that these appellants are here."

People against the pipeline packed the courtroom and a few dozen more watched in an overflow viewing area set up in the Warner Chamber.

Attorney Jim Powers, who represented TransCanada, said the court should give deference to the "constitutionally entrusted" decision of the Public Service Commission to determine what is in the best interest.

If they look at the record and find the commission had a rational basis to support its decision, justices should affirm it, he said.

"I don't think that this court should attempt to substitute its judgment for the judgment of the Public Service Commission, because it could violate the separation of powers," Powers argued.

In a rebuttal, Domina said TransCanada didn't apply for two or three routes, even if it provided evidence, as required, that it had considered two alternates.

"TransCanada came in riding one horse. That's all. ... It lost. It loses here, too," he said in closing, to cheers in the Warner Chamber.

In a gathering in the rotunda, Susan Dunavan said the landowners along the mainline alternative route had no notification or due process.

"It's up to TransCanada to start from scratch, start from the beginning, and follow the laws in the state of Nebraska," she said.

It could be months before the Supreme Court rules.

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

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