What a special legislative session in Nebraska means for TransCanada's proposed Keystone XL tar sands pipeline

Nebraska Governor Heineman has called the legislature to meet starting next week to consider the state’s options to protect its lands and waters from tar sands oil pipelines.  The Governor’s announcement has come after the State Department ignored repeated requests from Nebraska’s elected officials to seriously consider alternative routes for the Keystone XL pipeline which would bring tar sands oil from Canada to Texas ports, across the fragile Nebraska Sandhills. Nebraskans of all political persuasions see TransCanada’s tar sands pipeline for what it is – a poorly researched and conceived project that has disaster written all over it. Calling for a special session is a clear vote of no confidence in the State Department’s review of the project by the communities most likely to suffer if there is an oil spill – as there has been from TransCanada’s first Keystone pipeline. The Obama Administration needs to listen to the public concerns and reject the Keystone XL tar sands pipeline. And more immediately, the State Department must abandon its arbitrary end of the year deadline for a permit decision and allow Nebraska to weigh in on the project while also taking the time to fix the significant shortcomings in the federal review process.

So what can a Nebraska actually do? It turns out, quite a lot. While the federal Pipeline Safety Act grants the federal government authority to regulate the safety of hazardous liquid pipelines like Keystone XL, it expressly denies such authority to consider “the location or routing of a pipeline.” That means that States, and not the federal government, have the authority to consider the route of pipelines – an interpretation that both the State Department and the Congressional Research Service (CRS) agree on.

In fact, when asked about the State Department’s authority to route Keystone XL, Assistant-Secretary Keri-Ann Jones said:

We just really are responsible for the part that comes over the border and goes to the first valve. After that, the siting is very much related to the authorities of the state and how the different states give out whatever permitting authority they need to give to the company.

Nebraska’s legislature can pass a law that would prohibit the construction of hazardous liquid pipelines through its sensitive Sandhills region and provide a public process to ensure that its citizens can weigh in on pipeline siting. Nebraska can also revise its eminent domain statutes. Right now, Nebraska automatically grants companies eminent domain authority when building pipelines. The legislature can revise this statute to prevent companies like TransCanada from bullying landowners with eminent domain if they don’t agree to have a pipeline built through their groundwater.

Of course, with jurisdiction comes responsibility. If Nebraska’s elected officials don’t act to protect their citizens’ interests when it comes to the route of Keystone XL, who will? The State Department claims it has no authority to consider routes and is using TransCanada’s client Cardno-Entrix to do the environmental review for Keystone XL. Unsurprisingly, Cardno-Entrix has thus far avoided a serious evaluation of route alternatives. Federal pipeline safety regulators have no power to consider pipeline routing and thus far haven’t shown inclined to exercise their authority over safety until a pipeline explodes or ruptures. If Nebraska doesn’t take responsibility for where this pipeline is placed, Nebraskans may be stuck with an accident prone tar sands pipeline through their water supply in the Sandhills for decades to come. And America may be stuck with a pipeline that could contaminate the Ogallala Aquifer – the main source of freshwater for the communities, farms and ranches in eight states in the U.S. heartland.

In a recent letter, Nebraska State Senator Annette Dubas asked her colleagues to work with her to create the legal framework to protect our landowners, natural resources and water. She concluded with a quotation from Dr. Martin Luther King, Jr., which provided clarity for her decision on Keystone XL. May Dr. King’s words also provide clarity for Secretary of State Clinton and President Obama as they consider whether TransCanada’s Keystone XL tar sands pipeline, its risks to our nation’s water supply and environment, and a repudiation of the clean economy and jobs it produces are really in our nation’s interests:

Cowardice asks the question: Is it safe?

Expediency asks the question: Is it political?

Vanity asks the question: Is it popular?

But Conscience asks the question: Is it right?

And there comes a time when one must take a position that is neither safe, nor political nor popular – but one must take it because it is right.

Photo courtesy of Bold Nebraska