A Prudent Action on the Keystone XL Tar Sands Pipeline: Waiting for a legal pipeline route through Nebraska

The U.S. State Department has decided to extend the comment period  for the federal agencies who are weighing in on the proposed Keystone XL tar sands pipeline.  In their announcement, the State Department cited the fact there is no legal route through the state of Nebraska and there won’t likely be one for at least another 6 months to a year or more. The State Department also said they were still culling through over 2.5 million comments from the public which overwhelmingly cite the serious risks posed by the pipeline to land, water, climate, and public health.  Unsurprisingly, pro-pipeline advocates have called this decision politically expedient.  But in fact this decision is entirely consistent with the Administration’s efforts to ensure there is a good public process to confirm a safe proposed route for the pipeline.    

At the heart of the administration’s announcement is a recognition of the right of a state to set its own pipeline route.  President Obama has been clear in his support for the people of Nebraska:

"I don't think folks in Nebraska are going to say to themselves 'we'll take a few thousand jobs if it means that our kids are drinking water that can damage their health, or if rich land that is so important to agriculture in Nebraska ends up adversely affected.' That's how I'll be measuring these recommendations when they come to me." President Obama, November 2011

A recent court decision make Nebraska route illegal

In February, a Nebraska state court declared that the process for establishing a route through Nebraska for the pipeline was illegal.  The decision has been appealed and the Nebraska Supreme Court will hear the case again this fall. Until at least that time (possibly much longer) there is no approved route in Nebraska.  Without an approved route, the State Department is unable to evaluate the impacts of the pipeline particularly with respect to potential water contamination or threats to public health in the event of a spill.

The State Department rightly recognized that it would be improper to render any decision on the pipeline until there was a clear and defined route in Nebraska.  And without a route, how could government agencies and the public have the ability to evaluate the environmental impact?

If the District court judgment is confirmed by the state Supreme Court this fall then the nonpolitical Nebraska Public Service Commission (PSC) will then propose another route for the pipeline through their  scientific and public process.  Undoubtedly, Nebraskans will weigh in at that point outlining the threats to the sensitive Ogalala Aquifer, a critical and sensitive water supply source for people and agriculture in the region.

Debate over Nebraska pipeline route ongoing

The debate over the Nebraska route isn’t new.  For a detailed understanding of the history behind the siting of the Nebraska portion of the pipeline, please review the history of the debate over the Nebraska route by my colleague Anthony Swift.  Nebraskans have been debating the route of the pipeline because of the tremendous potential risk it poses one of the largest underground water supplies in the United States.  Back in October 2011, then Governor Heineman called for a special legislative session to pass a pipeline siting law allowing Nebraska to weigh in on a route through the Nebraska Sandhills.  The start of this state session prompted the State Department to pause the process on the pipeline so that Nebraska could determine a proposed route.   Shortly thereafter, Republican-sponsored legislation in the U.S. Congress forced President Obama to make a decision on the pipeline before a pipeline route was even confirmed.  So in January 2012, President Obama – citing the lack of a route in Nebraska – rejected the pipeline. 

After the President’s rejection of the pipeline, TransCanada chose to reapply for a new permit but then lobbied aggressively for a state law to avoid the normal public review process.  TransCanada worked closely with state Republican allies to passed a law (LB 1161) that avoided the normal scientific and public review.  This was the basis for the lawsuit brought by landowners challenging the law that is now deemed unconstitutional.

Why is there a debate over the route?

There is still a significant controversy in Nebraska over the route of the pipeline.  All of the internal debate in Nebraska has to do with the fact that TransCanada has proposed a route through the Nebraska Sandhills which is one of the most sensitive water regions in America’s Heartland.  But while TransCanada made a minor change to the route (moving it only 19 miles from the original problematic route), the pipeline still plunges straight through this sensitive water supply region.  According to my colleague Anthony Swift, “That’s small  comfort to Nebraska’s landowners, given the impact that tar sands spills have been shown to have on waterbodies, uncertainties surrounding spill cleanups in aquifers, and Keystone XL’s leak detection system inability to detect leaks smaller than half a million gallons per day.”

It is easy to say that the process over the decision for this pipeline has been delayed for politics.  But there are real reasons behind the “delay” in the process that have to do with protecting the public’s interest in clean water and safety.  This is a less about politics than it is about good process.