A Nebraska Supreme Court ruling doesn’t provide any clarity about the future of the Keystone XL pipeline, landowners' lawyers say. TransCanada, the pipeline company, says it’s moving forward with plans to acquire land for the project.
The Nebraska Supreme Court’s Keystone XL decision last week clears the way for the pipeline’s owner to start acquiring private land to route the crude-oil conduit through the state.
Or does it?
Most media reports say that the court’s January 9 decision gave Canadian pipeline company TransCanada the green light to take Nebraskans' land by eminent domain for the pipeline.
But lawyers for landowners in the case say the decision is far less certain.
“I’ve seen hundreds, maybe thousands, of media reports saying a hurdle to TransCanada construction was removed,” said David Domina, who represented Nebraska landowners in the case. “Any thoughtful reading of the [Nebraska] Supreme Court decision clearly discloses that’s not the case.”
The court case tested the constitutionality of a state law granting the governor authority to work with TransCanada to route the pipeline. Private landowners in the path of the proposed route said the state’s constitution requires the Nebraska Public Service Commission to approve the use of eminent domain for a pipeline.
A lower court agreed with the landowners.
Media reports say the state Supreme Court overturned that ruling. But in an online video, lawyers for the landowners say that the decision is much murkier and that they will continue the legal battle.
“This decision has simply been punted down the road to be answered on another day in the future,” said attorney Brian Jorde with Domina Law Group in Omaha.
Four of the state Supreme Court justices sided with landowners in the decision released last week. But three justices refused to vote. That left landowners one vote shy of the five-vote super-majority they needed to have the law declared unconstitutional.
Rather than deciding the case, landowner lawyers say, the Supreme Court added more uncertainty to the contentious issue.
“The cloud of uncertainty that we had hoped our lawsuit would answer once and for all is alive more than ever and looming larger over TransCanada’s head than before,” Jorde said. “It’s up to TransCanada to … play the next card. And they don’t have many cards to play.”
TransCanada spokesman Shawn Howard disagreed with that assessment.
“Lawyers for opponents of Keystone XL continue to issue threats, despite the fact that our pipeline route through the state of Nebraska continues to be valid and the process we have followed is the right one,” he wrote in an email published by the Guardian.
“They may not like the decision of the court, but the fact is they failed in their attempt to have the law overturned,” Howard said in the email. “As a result of the Nebraska Supreme Court’s decision, we continue to have a valid and approved route through the state.”
The issue in Nebraska is separate from federal wrangling currently occurring between Congress and President Obama over the pipeline, which would carry crude oil from Canada to refineries on the U.S. coast of the Gulf of Mexico. Because the project crosses the border with Canada, the federal government must approve it. President Obama has yet to issue a ruling, and the court case in Nebraska was one factor that gave the administration more breathing room to delay the decision.
The new Republican-controlled Congress is considering a law to take that decision out of the Obama administration’s hands. But the president says he will veto any such law.
Those federal considerations are a separate matter, Jorde said. “What the presidents does or doesn’t do and what votes Congress does or doesn’t are completely irrelevant to our specific state law state-law questions,” he said.