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Public Service Commission asks state’s Supreme Court to affirm ruling on Keystone XL pipeline

May 25, 2018 GMT

TransCanada and the Nebraska Public Service Commission both asked the state Supreme Court to affirm the approval of the mainline alternative route for the proposed Keystone XL pipeline.

In a brief filed this week, Assistant Attorney General Jay Bartel argued constitutional challenges raised by landowners over the eminent domain process are without merit.

Last month, Omaha attorney David Domina, who represents landowners, detailed a dozen reasons he believes the Nebraska Supreme Court should reverse the decision and deny TransCanada’s application outright.

Among them, he noted the commission had approved a route for which TransCanada hadn’t applied.

While TransCanada’s 275-mile preferred route was the focus of a court-style hearing in August, the PSC voted 3-2 on Nov. 20 to approve a slightly longer route known as the “mainline alternative.”

That route would cut farther east, then run parallel with the existing Keystone pipeline for about 95 miles. It would cross 11 Nebraska counties: Keya Paha, Boyd, Holt, Antelope, Madison, Stanton, Colfax, Butler, Seward, Saline and Jefferson.

In a 56-page brief filed Monday, Omaha attorney James Powers, an attorney for TransCanada, said the Major Oil Pipeline Siting Act authorized the PSC to “do precisely what it did in this proceeding.”

And, he said, to have TransCanada go through the same process again, as those opposed to the project argue should happen, would impose pointless expense and delay that the Legislature could not have intended when it passed the siting act.

Powers and Bartel, in a separate 51-page brief, both argued the PSC had authority to approve the mainline alternative route and the evidence on the record supports its finding that approval of the route is in the public interest.

“The landowners paint the PSC’s authority as narrow and binary; an application may be deemed to propose only a single route and the PSC’s authority is restricted to either approving or denying that route, full stop,” Bartel wrote.

But, he said, that argument is without merit. Bartel said multiple provisions of the state’s Major Oil Pipeline Siting Act “squarely contradict” the landowners’ position, including one that empowers the PSC to “deal solely with the issue of siting or choosing the location of the route.”

As for the issue of whether the route is in the public interest, Bartel said the PSC found the mainline alternative route was more beneficial, in that it involved, among other things, one fewer river crossing and fewer wells within 500 feet of the pipeline.

“The PSC’s approval of the mainline alternative route is supported by the record evidence, and is the product of reasoned decision-making,” he said.

The landowners and others opposed to the project, including the state’s chapter of the Sierra Club and the Ponca Tribe of Nebraska, argue that TransCanada didn’t apply for the route approved by the PSC and landowners along the route weren’t given notice.

More briefs are due in the case in June.

The Nebraska Supreme Court is expected to hear arguments in the case later this year.