A Lancaster County District Court has struck down the governor's decision to approve Keystone XL's pipeline route through the state in Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014). As described in a previous blog, LB 1161 was passed in 2012 to give Governor Dave Heineman the authority to approve the route rather than having the state's Public Service Commission (PSC) make the decision. The court found that the PSC--not the governor--is constitutionally empowered under Nebraska Constitution Art. IV § 20 to play the lead role in approving the pipeline's route. The PSC was created in the late 1800's to prevent precisely this kind of overreaching by politicians who were inclined to grant political favors to powerful railroad executives who wanted to expand their routes through private property. "If such abandonment or abolition of [the PSC's] regulatory control were permitted, the protection afforded to Nebraska citizens by the constitutionally created and empowered PSC would cease to exist." Thompson, supra, at 43.
The court found "no set of circumstances" under which LB 1161 could be upheld. Under the court's ruling, LB 1161 is unconstitutional and void, and the governor's action in approving the pipeline route is also null and void. Accordingly, the court permanently enjoined the state from authorizing the pipeline route pursuant to LB 1161. This means that the state is also prohibited from allowing Transcanada to exercise eminent domain to obtain easements over private property for the pipeline.
Governor Heineman vowed to appeal the ruling, but there's no doubt that the decision could cause more delays in finishing the pipeline. If and when the legislature fixes the constitutional problem by giving authority back to the PSC, the PSC will have to decide whether to approve the current pipeline route. If the PSC alters the route or any other specifications, the State Department will have to prepare another supplemental Environmental Impact Statement or Environmental Assessment to analyze the impacts of any significant changes.
At the very least, President Obama and Secretary John Kerry would be wise to withhold approval until the dust settles on the state's decision-making processes. Better still, President Obama could simply deny the permit as failing the "national interest" test, given the serious potential for pipeline leaks and greenhouse gas emissions, and the broader negative implications for creating a more sustainable energy portfolio for America's future.
No one needs yet another "Unnatural Disaster," as Christine Klein and I explain in our new book.
Sandra Zellmer, CPR Member Scholar; Robert Daugherty Prof. of Law, University of Nebraska College of Law. Bio.
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