Court Approves New Keystone XL Pipeline Route

LINCOLN (CN) — The Nebraska Supreme Court on Friday approved an alternative route for the Keystone XL pipeline project, which has been languishing in state courts for nearly a decade.

The much-anticipated opinion finds that an alternative route for the oil pipeline through the state “is in the public interest,” a major victory for pipeline backers.

The issue has been languishing in state courts for nearly a decade as TransCanada (now known as TC Energy) struggled to route its pipeline around environmentally and culturally sensitive regions and, since 2017, pushed to take advantage of a pipeline-friendly president.

The ruling allows TransCanada to move ahead with a route previously approved by the Nebraska Public Service Commission and bestows eminent domain power on the company. The proposed pipeline, 36 inches in diameter, would transport crude oil from Hardisty, Alberta, Canada to Steele City, Nebraska, and from there, in existing pipelines, to refineries on the Gulf of Mexico.

“We find there is sufficient evidence to support the PSC’s determination that the [alternative route] is in the public interest,” the 59-page opinion by Justice Jeffrey J. Funke states.

Landowners’ attorney Brian Jorde disagreed.

“They got it wrong,” Jorde said at a news conference. Jorde and Domina Law Group represent several landowners on the matter.

“This is not a choose-your-own-adventure game, draw a couple lines on a map and maybe one of them will work,” Jorde said.

He said the opinion relies on information from 2012 that is largely out of date and failed to consider an 83-mile stretch of proposed pipeline that was not included in the environmental review.

“We have been at this for 10 years,” Jorde said, vowing to keep the fight alive on behalf of his clients. “I urge everyone to be patient.”

Russ Girling, president and CEO of TransCanada Keystone Pipeline LP’s parent company TC Energy, welcomed the ruling.

“The Supreme Court decision is another important step as we advance towards building this vital energy infrastructure project. We thank the thousands of government leaders, landowners, labor unions and other community partners for their continued support through this extensive review process,” Girling said in a statement.

While the ruling gives clarity to the routing process in Nebraska, at least temporarily, there are several cases pending in federal courts about the Trump administration’s effort to streamline regulatory oversight and speed construction of pipelines without thorough environmental review.

In Nebraska, a group of landowners and two Native American tribes appealed the validity of the alternative Keystone XL route on several grounds: that the Public Service Commission lacks jurisdiction to consider the application; that the commission erred in finding that TransCanada met its burden of proof in showing the project is in the public interest; that the commission erred in approving the alternative pipeline route; and that landowners were denied due process.

The court didn’t buy these arguments. As the application is in compliance with applicable laws and the route is anticipated to have minimal environmental impact, the burden of proof was met, according to the court.

“The evidence demonstrated that a large percentage of the land crossed by the pipeline is agricultural in nature and that the impacts of construction will be temporary,” the opinion states.

Nebraska Sierra Club attorney Ken Winston told reporters that the court “cherry-picked certain evidence” in making its decision and ignored evidence that contradicts support for TransCanada’s preferred route.

A major point of contention with the previous route was that it crossed the Nebraska Sandhills region, an environmentally sensitive ecosystem where groundwater reserves are unusually close to the ground surface, and birds visit by the millions. The new route avoids this region.

The opinion called concerns about abuses of eminent domain are “premature and would be more properly raised in subsequent condemnation proceedings.”

Jane Kleeb promised to fight the pipeline by political means. Kleeb is founder of Bold Nebraska, an advocacy group that came to prominence by leading the fight against the pipeline, and she is chairwoman of the Nebraska Democratic Party.

“The Nebraska Legislature and a Democratic president can fix this very bad ruling coming out of the Nebraska Supreme Court,” she said. “At some point in our country’s history, property rights of farmers and sovereign rights of tribal nations should trump Big Oil’s land grab. It’s time for our elected officials to now step up and make it clear that pipelines are not in our public interest.”

Larry Wright Jr., chairman of the Ponca Tribe of Nebraska, also expressed disappointment with the decision.

“We’ve seen what pipeline companies do to cultural and historic resources in South Dakota with [Dakota Access Pipeline] — they intentionally plow through them and destroy them. Even the federal court in Montana recognized that the pipeline cannot be built until cultural and historic surveys are done, but the Supreme Court of Nebraska doesn’t seem to care about those resources in its own state. Regardless, the Ponca Tribe will continue to fight this pipeline that threatens all of our land, water, and resources in Nebraska,” Wright said in a statement.

The Keystone XL pipeline has ignited controversy in the state since 2011, when the Legislature consolidated its power to consider pipeline routes and related safety issues in the Public Service Commission. Although the Obama administration denied TransCanada’s permit application in 2012, the legislative action allowed Nebraska’s Department of Environmental Quality to keep reviewing possible routes that were subsequently approved by the governor.

One of President Donald Trump’s first actions in office, in 2017, was to invite TransCanada to resubmit its permit application. Two months later, the State Department granted TransCanada a presidential permit to proceed with the pipeline.

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