Challenge to XL Keystone Pipeline Aims at Neb. Eminent Domain Law

(CN) - Landowners in two Nebraska counties sued TransCanada Keystone Pipeline, challenging the constitutionality of a state law that grants the Canadian oil giant eminent domain powers to complete its controversial Keystone XL pipeline.

The law in question, LB 1161, also gives the governor the power to approve routing of the tar sands oil pipeline, though this responsibility is expressly granted to the Nebraska Public Service Commission in the state constitution, both complaints state.

Lead plaintiff Terry Byron Steskal sued in Holt County, lead plaintiff Susan Dunavan in York County. Both virtually identical lawsuits were filed on Jan. 16. Both counties are in central Nebraska.

Both claim that LB 1161 "unlawfully delegates to the governor the Legislature's plenary authority and responsibility to decide what designees of the Legislature may exercise the power of eminent domain."

Both Pete Ricketts, Nebraska's newly inaugurated Republican governor, and his predecessor, Dave Heineman, are ardent supporters of the pipeline.

The landowners claim that LB 1161: violates their property rights; violates the separation of powers between the governor's office and the Legislature; and allows the unauthorized expenditure of public funds by allocating $2 million to the Department of Environmental Quality to implement its provisions.

All seven plaintiffs claim they will lose rights to portions of their property if the pipeline routing law is allowed to stand.

The Nebraska Supreme Court this month reversed a decision that found the routing law unconstitutional. The judges voted 4-3 in favor of affirming the lower court ruling, but a five vote super-majority is required to overturn constitutional matters .

The dissenting opinion found that the court lacked jurisdiction to rule in the first place, and declined to provide an opinion on the merits of the plaintiffs' arguments.

The new lawsuits appear to be directed at the objections of the three dissenting judges.

"No Nebraska judge who has been called upon to consider the constitutionality of LB 1161 and has expressed a judicial opinion or conclusion on the subject, has concluded that LB 1161 is constitutional," the complaints state.

They add that four of the seven Nebraska Supreme Court justices found the law to be unconstitutional, and would affirm the ruling by the Lancaster County Court.

The dissenting opinion suggested that the plaintiffs try a different tack, by arguing that personal property rights are being threatened by the use eminent domain, and that "there must be dozens, if not hundreds, of potential plaintiffs" in a similar situation.

While the state supreme court ruling was an apparent victory for TransCanada and pro-pipeline factions, the tenuous nature of the ruling left the door open for further challenges that promise to prolong uncertainty even longer.

As TransCanada and its agents seek to condemn and acquire private property under provisions of the challenged law, the plaintiffs seek an injunction that would stop the foreign petroleum company from exercising eminent domain authority that they say was improperly granted.

The plaintiffs are represented by David Domina and his firm Domina Law Group, of Omaha, who argued the case before the Nebraska Supreme Court.

Both counties are in central Nebraska: Holt northwest of Omaha, and York between Lincoln and Grand Island.

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