Nebraska Property Owners Seek to Block Keystone XL Pipeline in Court

Photographer: Andrew Harrer

The path of TransCanada Corp.’s Keystone XL pipeline through Nebraska is being challenged again by the three landowners who sued unsuccessfully to overturn the law opening up its route through the state.

The property owners, who fell one vote shy of winning their case against the siting of the pipeline at the state Supreme Court this month, asked the seven-member panel to reconsider. They said in a court filing Tuesday that the judges who denied them their victory overlooked key facts.

The rehearing request came the same day Calgary-based TransCanada said it was starting legal proceedings to appropriate the last 12 percent of Nebraska land it needs to build the 1,179-mile (1,897-kilometer) pipeline from Alberta’s tar sands to a network junction in the southeast corner of the U.S. state.

Because the project crosses an international boundary, it requires the approval of U.S. President Barack Obama’s administration. The president has delayed that decision citing the Nebraska lawsuit and concerns over environmental impact. Lawmakers favoring the project as a step toward North American energy independence are working on legislation to force his hand. He has promised to veto any such bill.

Five of Seven

Nebraska’s constitution requires five of seven high-court justices to agree a statute is unconstitutional before it can be struck down.

While four concurred that legislation empowering former Governor Dave Heineman to determine the route violated the constitution’s allocation of that authority to the state’s Public Service Commission, three refused to reach that question, concluding that property owners hadn’t established they were in harm’s way.

David Domina, lead attorney for the landowners, called that rationale “mortally flawed,” arguing that when his case was filed in May 2012, no landowner knew the planned pipeline path. The legally defined route has still not been filed with the governor’s office, he said.

Under those circumstances, no property owners were in a better position to assert their claims than his clients, Domina said.

Attorney General

Nebraska Attorney General Doug Peterson’s office Wednesday told the high court that his office won’t file any response to the landowners’ rehearing request, leaving the decision in solely to the justices.

Mark Cooper, a TransCanada spokesman, said the bid for a second chance wasn’t unexpected.

“We recognize that a small minority of people will continue to oppose this project -- including the legal team representing these landowners and the professional activists who influence them,” Cooper said.

An earlier TransCanada pipeline through the state, also dubbed Keystone, has safely transported more than 710 million barrels of crude across the state since 2010, he said.

The Keystone XL conduit would carry 830,000 barrels a day from the tar sands to Steele City, Nebraska, from where they’d be shunted to the U.S. Gulf Coast.

Two more legal challenges to the legislation underlying the Nebraska route were filed by Domina in state courts on Jan. 16. One of those suing landowners, Susan Dunavan, is also a plaintiff in case before the state Supreme Court.

The case is Thompson v. Heineman, S-14-000158, Nebraska Supreme Court (Lincoln).

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