Nebraskans File New Lawsuits that Could Stop the Keystone XL Pipeline

Nebraska landowners have launched two separate lawsuits that, if successful, could serve to delay or even stop the construction of the controversial Keystone XL tar sands pipeline.

The lawsuits, filed last week, represent Nebraska property owners’ second attempt to challenge the constitutionality of a law that gave the Keystone XL pipeline a legal route through the state and, by extension, their property.  The landowners claim that TransCanada — the Canadian company that wants to build Keystone XL — made direct threats to use eminent domain and seize their land if they did not consent to having the pipeline run though it.

“We stand with landowners to protect property rights and a constitutional pipeline routing process,” said Jane Kleeb, director of Bold Nebraska, a group that has been at the center of the state’s Keystone XL opposition movement.  “While we fight to ensure TransCanada and the state of Nebraska do not run roughshod over farmers and ranchers, we also call upon President Obama to reject Keystone XL now.”

The law that is being challenged is called LB1161.  The landowners say it is unconstitutional because it allows pipeline companies, like TransCanada, to bypass the state’s Public Service Commission (PSC) when seeking approval of their route through the state and go directly to the Governor.  The landowners say that the PSC, which has a stricter permitting process, is the only entity with direct authority to regulate pipelines under Nebraska’s state constitution.

More specifically, the landowners say former Gov. Dave Heineman “abus[ed] the powers of his office … by taking away the authority from the PSC … and instead [gave] the authority to himself to approve a pipeline and give a foreign corporation the power of eminent domain before they have all their permits in place.”

Dave Domina, the attorney representing the landowners, told the Associated Press that the lawsuits are very similar to the one dismissed last week by the Nebraska Supreme Court. In that decision, four out of the court’s seven judges agreed with a district court’s February 2014 decision that LB1161 law was unconstitutional.  But according to Nebraska’s constitution, the court needed the agreement of a super majority — five out of the seven judges — to officially throw out the law.

The decision by the Nebraska Supreme Court effectively confirmed that the 1,700-mile pipeline, which would have the capacity to carry up to 830,000 barrels of Canadian tar sands oil per day, has a legal route through the state.  But the court left it open for the route to be challenged in court again, which is what the latest legal challenge represents.  The first lawsuit took about three years to resolve in the Supreme Court — attorneys for the landowners say the latest lawsuits could take about two years.

According to the Associated Press, federal agencies have until February 2 to give advice on whether to move forward with the pipeline.  Meanwhile, the Senate is expected to vote on legislation to approve Keystone XL’s construction sometime this week.  President Obama has vowed to veto the legislation.

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