Nebraska high court hears Keystone case

Proponents of the Keystone XL pipeline urged the Nebraska Supreme Court on Friday to reject a challenge from landowners fighting the project’s route through the state.

Deputy Attorney General Katherine Spohn argued on behalf of Nebraska’s Gov. Dave Heineman (R) and other state officials, claiming that the landowners have no standing to challenge a law that gives the governor authority to approve the pipeline’s route.

{mosads}A lower court sided with the landowners and ruled that a 2012 law allowing Heineman to greenlight Keystone’s route was unconstitutional. That decision invalidated the pipeline’s path, forcing state officials to appeal the case to Nebraska’s high court. The lower court said a state agency should instead decide the route.

In her legal arguments, Spohn argued that Keystone XL is an “interstate” not “intrastate” pipeline, and that the lower court’s decision to label it a “common carrier” was a mistake. That designation led the lower court grant authority over the pipeline route to Nebraska’s public service commission.

Spohn also argued that the landowners can’t challenge the route because they have not suffered any harm yet. Landowners could only get a day in court if they lost their lands to the pipeline via eminent domain, she said.

Dave Domina, a Democratic Senate candidate and lawyer for Nebraska landowners, defended their standing to bring forward the case.

Domina said the issue is an “entirely site location case,” and that the public service commission should have authority over the project’s fate, not the governor.

He took issue with Spohn’s claim that other pipeline companies would be “better suited” than landowners to challenge the law used by the governor to provide a route for the $5.4 billion project.

Judges on Nebraska’s high court gave little indication how they might rule on the case after an hour of oral arguments. 

Jane Kleeb, the founder of an anti-Keystone group, Bold Nebraska, stressed in a call after oral arguments on Friday that landowners and other opponents “will continue to build the citizen movement” against the project.

“Property rights and our state constitution are not for sale in Nebraska. TransCanada came into our state bullying landowners and spending millions lobbying our elected officials,” Kleeb said.

Pipeline developer TransCanada filed a brief to the high court but noted that it is not a party to the legal fight.

“The central issue to be reviewed is who has the authority to approve the Keystone XL route — the governor or the Public Service Commission,” TransCanada spokesman Shawn Howard said in an email. “Throughout the entire process, TransCanada has followed the rules and procedures it has been required to and we will continue to do so.

“We will wait for a decision and additional direction from the Nebraska State Supreme Court regarding this legislation,” he added.

The state Supreme Court isn’t expected to issue a final decision until October at the earliest, pushing any announcement on the pipeline by President Obama to well after the midterm elections in November and likely into 2015. 

The State Department put its final review of the pipeline, which would determine whether the project is in the nation’s best interest, on hold, citing the litigation in Nebraska.