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Judge allows Keystone XL lawsuit to proceed

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A lawsuit challenging the constitutionality of Nebraska's pipeline siting law cleared a legal hurdle Tuesday.

A Lincoln judge ruled the case -- filed against the state by Nebraska landowners who oppose the Keystone XL pipeline -- could go forward, over the state's request to dismiss it.

A year ago, Randy Thompson of Martell, Susan Dunavan of McCool Junction and Susan Luebbe of Stuart sued Gov. Dave Heineman, Nebraska Department of Environmental Quality Director Michael Linder and state Treasurer Don Stenberg over LB1161.

This week, for the second time, District Judge Stephanie Stacy refused to dismiss it.

In an earlier motion, the state took the position that it was too early for judicial review, because the governor hadn't yet approved or denied a particular route under the siting law.

The state's attorneys said the review process should be allowed to play out and final decisions be made by the governor and Nebraska DEQ first.

The judge let the case go forward then, but the state tried to stop it again after the plaintiffs amended the complaint.

This time, the state argued the claims were moot because of the governor's Jan. 22 decision approving the route for the pipeline project and granting TransCanada the power of eminent domain under the procedure mandated by LB1161.

In the order Tuesday, Stacy found that didn't make this case moot.

"The court finds this argument unpersuasive given the nature of the claims asserted and relief requested," Stacy wrote in her order.

She said the landowners are challenging the constitutionality of LB1161 on its face, and those claims "remain unaffected by the governor's ultimate approval, or disapproval, of any particular pipeline route."

Stacy found the lawsuit could go forward on a claim that the law unconstitutionally allowed the state to give or loan its credit to a private business.

TransCanada's proposed $7 billion, 1,700-mile connection between Canadian oil sands and refineries along the U.S. Gulf Coast has been under state and federal scrutiny for about four years.

In related action, the Sierra Club filed a lawsuit in federal court in Washington, D.C., Monday asserting the U.S. Department of State is withholding key documents related to the latest environmental impact statement on Keystone XL, along with potential conflicts of interest with the consultant hired by the agency to complete the review.

“It appears that the State Department not only failed to properly screen the consultant, Environmental Resources Management, for conflicts of interest, but attempted to conceal ties to the oil industry by redacting ERM staff bios on documents posted on State’s website,” said Sierra Club attorney Devorah Ancel.

Sierra Club is challenging the findings of the review because they dismiss the climate effects of tar sands and downplay the importance of Keystone XL to the development of Alberta tar sands.

The Associated Press contributed to this report.


Reach Lori Pilger at 402-473-7237 or


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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

Related to this story

A trial date of Sept. 27 has been set for a challenge to the state law that approved the Nebraska portion of the route for the Keystone XL pipeline.

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