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In suit, landowners opposed to Keystone XL say pipeline routing must start over

April 18, 2018 GMT

LINCOLN — Landowners opposed to the controversial Keystone XL pipeline raised a new legal argument Monday, claiming that a Canadian pipeline firm failed to take a required “first step” before winning approval of an alternative route across the state last year.

TransCanada also didn’t seek approval from the Nebraska Public Service Commission for routes other than its “preferred” route, according to a legal brief filed on behalf of about 60 landowners.

Lawyers David Domina and Brian Jorde quoted Shakespeare — “things sweet to taste prove in digestion sour” — in arguing that either way, routing for the much-delayed crude oil pipeline needs to start over. That could delay the $8 billion project by at least another year.


“TransCanada cannot keep what it did not seek,” the lawyers said. “The indigestion set in for TransCanada immediately after the (Public Service Commission) decision of November 20.”

Landowners on Monday submitted a 36-page brief to the Nebraska Supreme Court, asking the court to nullify the Public Service Commission’s approval in November of a route for the pipeline across the state.

The route approval was one of the last hurdles confronting the pipeline, which had been blocked by President Barack Obama as a threat to the environment, then revived by President Donald Trump shortly after he took office in 2017 in the name of jobs and energy independence.

The landowner lawsuit, along with a federal lawsuit filed in Montana, have blocked the project. The Nebraska Supreme Court is not expected to hear oral arguments in the case here until this fall, with a ruling coming after that.

A spokesman for TransCanada, Matthew John, said late Monday afternoon that he had not yet seen the landowners’ legal brief and could not comment. He said it was not surprising that a group opposing the Keystone XL was raising new arguments to stop it.

The company has 30 days to file its own legal brief.

In November, the Public Service Commission approved a 275-mile route across Nebraska. It was not the “preferred” route sought by TransCanada, but an alternative route offered by the corporation that paralleled, for more miles, the route of an existing TransCanada crude oil pipeline across eastern Nebraska.


Domina and Jorde, who represent the landowners, have previously said the company erred by only asking for approval of the preferred route. The alternatives, they said, were offered only to show that other routes were considered; there was no request to approve them or public hearings to consider them.

On Monday, the lawyers’ first legal brief to the Supreme Court added a new wrinkle — that TransCanada failed to first submit its proposed routes to the governor.

They cited a state pipeline siting law that requires the governor — in this case, Gov. Pete Ricketts, a pipeline supporter — to first deny a route before a company can submit an application to the Public Service Commission.

Because TransCanada didn’t do that, the route approval it received last year should be nullified, and the process should start over, the attorneys said.

“The governor must say ‘no’ first; then comes the PSC,” the attorneys argued. “TransCanada missed the jurisdictional first step.”

The landowners’ lawsuit was initially filed in December with the State Court of Appeals but was transferred up to the Supreme Court on a motion by the higher court.

Also Monday, TransCanada announced that it would begin surveying its approved route by helicopter next week, a process that could take about 10 days.

John said the corporation’s land agents will begin making right-of-way acquisition offers and will provide extra “incentive payments” to landowners who sign up soon.

The 36-inch pipeline is designed to carry about 830,000 barrels of oil a day from the tar sands region of Canada to oil refineries on the U.S. Gulf Coast set up to handle the thicker crude. TransCanada has said it is still optimistic that enough shippers will sign up to make the project financially feasible.