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Keystone XL Wins in Nebraska High Court

TransCanada Yet to Make Final Decision on Whether to Build Pipeline

OMAHA (DTN) — The Nebraska Supreme Court upheld a decision by state regulators in November 2017 to approve a route for TransCanada’s Keystone XL pipeline, in a ruling handed down Friday.

The decision was just the latest in a long series of legal fights TransCanada has faced since it originally proposed the $8 billion project back in 2008.

Landowners and environmental groups have rallied against the project for fear the pipeline would harm sensitive Sandhills ecosystems and damage tribal lands including crossing the Ponca Tribe’s culturally sacred “Trail of Tears.”


Though the state’s high court agreed with the state on every point argued in court, project opponents said during a press call on Friday they will continue to fight. Currently there are three additional lawsuits pending in federal court in Montana.

In addition, they said there are 83 miles of the mainline alternative route that have yet to be analyzed — which may open the door for more legal challenges. In addition, the landowners’ attorney Brian Jorde, from Domina Law Group, said the company has not updated Keystone’s reclamation and mitigation plan since 2012.

“At some point in our country’s history, property rights of farmers and sovereign rights of tribal nations should trump big oil’s land grab,” said Jane Kleeb, Bold Nebraska founder.

“The Nebraska legislature can fix our broken state laws that give too much power to big oil. There is nothing American about the KXL pipeline — it is a project with foreign steel and foreign tar sands all headed to the export market. Our water is on the line here, and for the past decade too many politicians sat on their hands while the people did the work. It’s time for our elected officials to now step up and make it clear that pipelines are not in our public interest.”

Some farmers and ranchers have opposed the pipeline for fear a pipeline accident could harm sensitive lands and the Ogallala Aquifer in the Sandhills.

If it is built, the 1,700-mile pipeline is expected to carry about 830,000 barrels of oil per day from Alberta oil fields to Texas refineries. TransCanada was set to begin construction in the second quarter of 2019.

In 2018, President Donald Trump’s administration issued a presidential permit to build the pipeline as part of a release of a federal review, concluding the proposed pipeline poses no significant threat to the environment.


In August 2018, however, the U.S. District Court for the District of Montana put the project on hold in requiring the administration to conduct a full environmental review of the proposed route across Nebraska.

Landowners’ attorneys argued the proposed pipeline route’s approval by the Nebraska Public Service Commission in November 2017 was illegal on a number of grounds. They said it was a violation of due process rights for landowners. Attorneys for the Ponca Tribe of Nebraska and Yankton Sioux Tribe argued the route’s approval was illegal because landowners and Ponca members on the route were not notified and it was approved without completing a survey of sacred and cultural sites.

Larry Wright, Jr., chairman of the Ponca Tribe of Nebraska, said neither the company nor the state fully understands how the pipeline route affects tribal lands.

“The reality is neither TransCanada nor the PSC has any idea what cultural and historic resources are along the route because surveys have never been done,” he said.

“We’ve seen what pipeline companies do to cultural and historic resources in South Dakota with DAPL (Dakota Access Pipeline) — they intentionally plow through them and destroy them. Even the federal court in Montana recognized that the pipeline cannot be built until cultural and historic surveys are done, but the Supreme Court of Nebraska doesn’t seem to care about those resources in its own state.”


TransCanada has not yet announced a final decision on whether to build Keystone XL.

TransCanada Energy’s President and Chief Executive Officer Russ Girling said in a statement the company continues to work on the project.

“The Supreme Court decision is another important step as we advance towards building this vital energy infrastructure project,” Russ Girling, TransCanada Energy’s president and chief executive officer said in a news statement.

“We thank the thousands of government leaders, landowners, labor unions and other community partners for their continued support through this extensive review process. It has been their unwavering support that has advanced this project to where it is today.”

Nebraska Republican Gov. Pete Ricketts said in a statement that the court’s decision was a “last step” in what has been a long process.

“It’s well-known that the Keystone XL pipeline will bring great-paying jobs and property-tax revenue to the counties along the route,” he said. “It’s time to build the pipeline.”


In 2014, the Nebraska Legislature passed LB1161, which allowed then Nebraska Gov. Dave Heineman to approve a new proposed Keystone route. A lawsuit filed by state landowners along the proposed route challenged the law, saying the state should have allowed the Public Service Commission to approve the route.

That lawsuit alleged the governor’s action violated personal property rights of farmers, ranchers and other landowners, because the law did not include a provision that allows public input ahead of the governor’s decision.

In January 2015, the state’s high court ruled Heineman had the authority to approve the route without PSC involvement.

Although the Obama administration’s state department found in multiple reviews that building the pipeline would have no appreciable effect on climate change or the environment in general, the administration twice rejected TransCanada’s request for a presidential permit.

In January 2016, TransCanada filed a North American Free Trade Agreement claim after the Obama administration rejected the application for a presidential permit. The company claimed the rejection was “arbitrary and unjustified.”

Read the court’s decision here.

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