Nebraska Court finds the proposed route for Keystone XL unconstitutional

Nebraska - Sign Water Jane Kleeb.jpg

In what is a major victory for farmers, ranchers and other landowners, Nebraska’s District court has declared the route for the proposed Keystone XL tar sands pipeline through that state to be unconstitutional. This significant court decision means once again that the proposed Keystone XL tar sands pipeline does not have an approved route through the State of Nebraska. Moving forward, this is likely going to mean that Keystone XL’s route through Nebraska will have to go through a more rigorous process conducted by the state’s Public Service Commission. This is an important decision given that landowners know the Keystone XL tar sands pipeline poses an unacceptable risk to the land and water that farms, families and communities depend on. This is also a clear signal to the State Department to stop the ninety day National Interest Determination (NID) clock for the same reason it stopped it in 2011, to give Nebraska the opportunity to determine Keystone XL’s route in accordance with its laws. 

Dave Domina, the lawyer who handled the case for the landowners summarized the ruling

“Under the Court’s ruling, TransCanada has no approved route in Nebraska. TransCanada is not authorized to condemn the property against Nebraska landowners. The pipeline project is at standstill in this State.” 

This is a very significant decision and is likely to impact the federal decision making process around Keystone XL as it has in the past. In November 2011 after Nebraska passed its new pipeline siting laws, the State Department stopped the NID clock for Keystone XL in order to allow Nebraska to evaluate the route. After Congress passed a law requiring Keystone XL to be approved or denied in sixty days, President Obama denied the permit because the deadline required a decision before Nebraska proposed a route – preventing federal review of that route. President Obama refused to make a decision on Keystone XL until it had a route in accordance with state law, and there is no reason for the President to chance course now.

This ruling gives Nebraskans an opportunity to engage in their state’s regulatory process to ensure that their concerns are heard and that the risks the tar sands pipeline poses to their most sensitive lands and waters and communities are considered in the pipeline siting process. 

Jane Kleeb, the Director of Bold Nebraska, said:

"Citizens won today. We beat a corrupt bill that Gov. Heineman and the Nebraska Legislature passed in order to pave the way for a foreign corporation to run roughshod over American landowners," said Bold Nebraska director Jane Kleeb, in reaction to the decision in Thompson v. Heineman that found LB 1161 — the law that fast-tracked approval of the Keystone XL pipeline route in Nebraska — to be unconstitutional. 

"We look forward to the Public Service Commission giving due process to a route that TransCanada will have to now submit to this proper regulatory body in Nebraska. TransCanada learned a hard lesson today, never underestimate the power of family farmers and ranchers protecting their land and water."

It will be impossible to determine whether this project is in the national interest until Nebraska approves a route for the pipeline.  The PSC route may differ markedly from the controversial route proposed through the Governor’s expedited process. If so, the new route will need to be fully evaluated by state and federal authorities. Finally, this is the latest sign that this dangerous project should be firmly rejected by the president. The risks are too high, and there’s no payoff for anyone other than the tar sands industry.