Nebraska Court Upholds State’s Approval of Pipeline Path

The court's decision was a victory for the $8 billion project, which has been mired in lawsuits and regulatory hearings

By Associated Press

LINCOLN, Neb. – Nebraska’s highest court lifted one of the last major hurdles for the Keystone XL pipeline in the state on Friday when it rejected another attempt to derail the project by opponents who wanted to force the developer to reapply for state approval.

The Nebraska Supreme Court upheld the decision of regulators who voted in November 2017 to greenlight a route through the state. The court’s decision was a victory for the $8 billion project, which has been mired in lawsuits and regulatory hearings since it was proposed in 2008.

Despite the victory for Canada-based TC Energy, opponents vowed Friday that the legal fight to block construction was far from over, noting several pending federal lawsuits.

“The risky pipeline project’s fate is still very much in doubt, as three separate federal lawsuits continue to proceed that challenge the controversial project’s permits,” leading pipeline opposition group Bold Alliance said in a statement.

Friday’s ruling stemmed from the Nebraska Public Service Commission 3-2 vote nearly two years ago in favor of an “alternative route” for the project instead of developer TC Energy’s preferred pathway. Opponents filed a lawsuit arguing the company didn’t follow all the required procedures for the alternative route, in violation of state law.

Attorneys for the opponents argued that TC Energy’s application with the commission was valid only for its preferred route, and the company formerly known as TransCanada could seek approval only for one route at a time. Nebraska state attorneys disputed that claim, saying that the commission’s decision complied with the law and was in the public’s interest.

The high court on Friday sided with the state, saying the Public Service Commission is the agency responsible for determining which pipeline route is in the public interest, and that it did so after months of consideration.

“We find there is sufficient evidence to support the PSC’s determination that the (alternative route) is in the public interest,” Justice Jeffrey Funke wrote for the court.

An attorney for the opponents said they were weighing their legal options, including a possible federal lawsuit challenging the route Nebraska’s Public Service Commission approved.

“Now that the Supreme Court has gone ahead and affirmed approval of a route that was never applied for, that should trigger an analysis of these new 83 miles for which no evidence was adduced and no federal or state studies have ever been conducted,” Omaha attorney Brian Jorde said.

Nebraska Gov. Pete Ricketts, a Republican and longtime supporter of the project, issued a statement saying it’s “time to build the pipeline” and that doing so would bring jobs and tax revenue to the state — an assertion opponents repudiate.

If completed, the pipeline would carry oil from Canada through Montana, South Dakota and Nebraska, where it would connect to an existing pump station in Steele City, Nebraska. From there it would continue through Kansas, Oklahoma and Texas until it reaches Gulf Coast refineries. Business groups and some unions support the project as a way to create jobs and reduce the risk of shipping oil by trains that can derail.

The pipeline faces intense resistance from environmental groups, Native American tribes and some landowners along the route who worry about its long-term impact on their groundwater and property rights. But in Nebraska, many affected landowners have accepted the project and are eager to collect payments from the company.

President Barack Obama’s administration studied the project for years before finally rejecting it in 2015 because of concerns about carbon pollution. President Donald Trump reversed that decision in March 2017. Federal approval was required because the route crosses an international border.

Bold Alliance President Jane Kleeb called on the Nebraska Legislature to intervene, saying the property rights of farmers and sovereign rights of Native American tribes “should trump Big Oil’s land grab.”

The chairman of the Ponca Tribe of Nebraska, Larry Wright Jr., said the ruling disregarded the potential destruction of the tribe’s cultural resources.

TC Energy issued a news release describing the ruling as an “important step as we advance” toward building the pipeline, but spokeswoman Robynn Tysver could not immediately say whether the ruling would promptly open up the project to construction.