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Keystone Pipeline Nebraska Path Argued at Top State Court

TransCanada Corp. (TRP)’s Keystone XL pipeline’s route throughNebraskacan be legally chosen by Governor Dave Heineman and the company, a lawyer for the state told its top court, asking for reversal of a lower-court ruling that the power belongs to the state Public Service Commission.

Photographer: Nati Harnik/AP Photo

 

The three landowners who sued weren’t harmed by the decision and lack the necessary legal right to pursue the case, state Deputy Attorney General Katherine Spohn told the Nebraska Supreme Court today in Lincoln, the capital.

“There are individuals that are better suited to bring this challenge,” she said.

The $5.4 billion 1,179-mile (1,897 kilometer) pipeline would carry oil from Hardisty,Alberta, to a junction inSteele City, Nebraska.

Nebraska officials and the Calgary-based company agreed to change the pipeline’s route through the state to accommodate concerns that a leak would threaten the Ogallala aquifer, a source of drinking water.

Seven judges heard about 30 minutes of arguments from the state and from Omaha attorney Dave Domina, the landowners’ lawyer, who is also theDemocratic Party’s nominee to fill the U.S. Senate seat being vacated by retiring Republican Mike Johanns.

The judges didn’t say when they will rule or indicate which way they might be leaning.

Capitol Hearing

The hearing, in a courtroom at the state Capitol building, was attended by media, lawyers and pipeline supporters and opponents who filled the chamber.

If the February decision of trial court Judge Stephanie Stacy is upheld, the siting question will be referred to the Public Service Commission, further delaying the now six-year-old project.

It has already been held back by environmental concerns raised after an initial route-selection and PresidentBarack Obama’s hesitancy to approve a project that might lead to an increase in carbon dioxide emissions that cause global warming. It needs Obama’s approval because it would cross the U.S. border.

The challenged legislation, enabling Heineman and TransCanada to map the pipeline’s path through the state, was signed by the governor in 2012. Stacy ruled it invalid, finding TransCanada to be a common carrier under state law and subject to commission regulation. The state dispute the common-carrier designation.

Judges’ Questions

TheSupreme Courtpanel of two women and five men peppered the attorneys with questions concerning the property owners’ legal right to maintain the lawsuit and their claim that only the commission can legally choose the route.

Justice William Connolly reacted skeptically to Spohn’s remark that the landowners hadn’t been hurt by the legislation because it obligated TransCanada to fully reimburse the state for environmental assessment costs. He asked her who better could have brought the lawsuit?

Other pipeline carriers who may be aggrieved by the legislation, she replied.

Connolly countered that the law actually conferred a benefit on those companies by affording them the choice of proceeding through the site-selection process with the governor or the commission.

“I suppose it’s more beneficial,” she said.

Pipeline’s Path

The state is “motioning to the universe,” said Domina, the landowners’ lawyer, contending the state couldn’t truly show any better challengers exist than landowners such as his clients, who may be in the pipeline’s path. Its legal description hasn’t been made public, he said.

Spohn also defended the challenged law on its merits, telling the court the state’sPublic Service Commissionhas no jurisdiction over the Keystone XL, an interstate pipeline.

Domina said that if the law is upheld, the route-selection process will be insulated from judicial review.

After today’s hearing, Nebraska Attorney General Jon Bruning told reporters he was confident that the court will uphold the statute and reverse the trial-court decision.

He said he expects a ruling by the end of the year.

Spohn, at the same press conference, reiterated that the legislative definition of common carrier applies just to those operating entirely in the state, not to TransCanada.

Surrounded by supporters in the Capitol rotunda, some wearing Domina t-shirts, the landowners’ lawyer told reporters the lawsuit was about due process.

“Due process meant, in this instance, that when somebody seeks authority to build a great big giant structure across our state for the purpose of making a profit by transporting something from the north side to the south side, they need to go through a procedure that entitles and permits the citizens of Nebraska to participate,” he said.

http://www.bloomberg.com/news/2014-09-05/keystone-pipeline-nebraska-path-argued-at-top-state-court.html