Pipeline foe calls court ruling ‘gift from the heavens’ 

Source: Manuel Quiñones, E&E reporter • Posted: Tuesday, January 13, 2015

Attorneys for Nebraska landowners opposed to TransCanada Corp.’s Keystone XL oil pipeline from Canada said today more litigation is possible if the company insists on using the currently approved route.

Last Friday the state’s Supreme Court upheld the constitutionality of a 2012 law that gave the governor authority to set the route, but it did so on a technicality (Greenwire, Jan. 9).

Four of the seven justices — three Democratic appointees and one Republican appointee — said stripping the Public Service Commission’s authority to set KXL’s route was unconstitutional. But the state’s permitting process says a supermajority of justices is needed.

The remaining three justices — two Republican appointees and one Democratic appointee — didn’t rule on the question because they said landowners didn’t have standing to bring the suit in the first place. That means no justice went on the record supporting the law’s constitutionality.

“Since last Friday I’ve seen hundreds, maybe thousands, of news stories saying that a hurdle to TransCanada’s construction was removed,” attorney Dave Domina said in a video released today. “Any thoughtful reading of the Supreme Court’s opinion clearly discloses that’s not the case.”

Attorney Brian Jorde followed up in an email, saying, “The decision on Friday was a gift from the heavens for all our Nebraska landowner clients and anyone hoping for further delays of this project.”

In the video, Jorde, of the Domina Law Group, said that “it’s perplexing, confusing and unclear at first glance what it really means.” He added the constitutionality question was “pushed down the road, or punted away to be answered on another day in the future.”

The three dissenting justices also said the court needs a supermajority to rule on the standing question. But with four justices disagreeing, the court remains on the record upholding the landowners’ right to sue.

Even though Jorde and Domina, who ran unsuccessfully for the Senate last year, didn’t detail their strategy this morning, they are likely to take advantage of the standing decision plus the lack of a firm high court decision to revive the case.

Jorde said key state law questions remain unanswered. “And until they are answered,” he said, “the question is open and unresolved in the state of Nebraska.”

To be sure, TransCanada doesn’t agree with the pipeline foes.

CEO Russ Girling said the ruling removes an obstacle for KXL and puts pressure on the Obama administration to make up its mind on the pipeline’s transboundary crossing.

“Along the route, we have acquired 100 percent of land easements from private landowners in Montana and South Dakota, with 84 percent of those acquired along the new route in Nebraska,” he said.

The State Department, which is reviewing KXL’s application, said the ruling means different agencies would now be able to provide input on whether the project should move forward. The administration had cited uncertainty over KXL’s route as a reason for permitting delays.

“So the next step is to request that the agencies complete their consideration of whether the proposed project serves the national interest and provide their views to the department,” State spokeswoman Jen Psaki said Friday.

“That will, of course, be factored into the national interest determination,” she said, “which is what ultimately at some appropriate time the secretary will issue.”

Meanwhile, the House last week approved legislation to bypass the administration and approve KXL. A test vote on the same bill is scheduled for the Senate this evening. The White House has threatened to veto the legislation, supporting the ongoing review.

Environmentalists, pipeline backers and landowners agree on one thing — that action in the states does not preclude the administration from making a decision on KXL. The legislation also would not pre-empt state permitting authority.

Domina and Jorde said landowners were waiting to see what TransCanada does. “But if it chooses the route that we think is unconstitutional,” Domina said, “the property owners of this state and we as their lawyers are prepared to meet TransCanada.”

Jorde said, “It’s up to TransCanada to make the next move, play the next card. And they don’t have many cards to play.” Domina added, “The landowners here aren’t finished fighting, and neither are we.”