The Nebraska Supreme Court reversed a lower court’s decision that nullified the controversial Keystone XL pipeline route through Nebraska Friday, meaning that Keystone XL once again has a legal route through Nebraska.
Four out of the seven judges on the Nebraska Supreme Court agreed with a district court’s February 2014 decision that Nebraska’s LB1161 law was unconstitutional, but according to Nebraska’s constitution, the court needed the agreement of a super majority — five out of the seven judges — to officially label the law as unconstitutional.
Nebraska’s LB1161 made it possible for pipeline companies, like TransCanada, to chose whether to submit their pipeline plans to the state Department of Environmental Quality, which would then bring the plans to Nebraska’s governor for final approval or rejection, or the state’s Public Service Commission, which had a stricter permitting process in place and didn’t depend on the governor for final approval.
In 2012, three Nebraska landowners — Randy Thompson, Susan Luebbe and Susan Dunavan — sued to challenge the law, saying it was went against the state’s constitution. The district court sided with the landowners in February 2014, but the state Supreme Court’s ruling nullifies that decision.
“This appeal is not about the wisdom or necessity of constructing an oil pipeline but instead is limited to the issues of great public concern raised here: which entity has constitutional authority to determine a pipeline carrier’s route and whether L.B. 1161 comports with the Nebraska Constitution’s provisions controlling this issue,” the Supreme Court judges write in the ruling.
But since just four members of the court, not five, found the law unconstitutional, the Court writes that “the citizens cannot get a binding decision from this court,” and the district court’s decision is vacated.
“While the outcome may not be what we had hoped for, I believe we have successfully sent the message that Nebraska citizens are willing to stand up and fight back against the politically corrupting influence of rich and powerful corporations,” Randy Thompson, one of the Nebraska landowner plaintiffs in the case, said in a statement reacting to Friday’s decision. “Even if LB1161 has been found to be technically legal, it still does not make it right, and the passage of this legislation represents a gross injustice to many hardworking Nebraska families.”
When it applied for approval of Keystone XL’s route in Nebraska, TransCanada had chosen to take the DEP route, allowing the governor to have final approval over the pipeline’s route through the state. In February, the district court found that that TransCanada shouldn’t have had a choice: it should have submitted its route through the Public Service Commission, and the governor shouldn’t have had final say. Since the court’s decision nullified the DEP and governor’s ability to approve pipelines, it made it so that TransCanada had no legal route through Nebraska. Now, however, the pipeline company’s route still stands.
Jane Kleeb, director of Bold Nebraska, said in a press call in December that even though a Court ruling that reversed the district court’s decision would give Keystone XL a legal route through Nebraska, she doesn’t think it’s a win for TransCanada.
“Any decision the Supreme Court makes is a lose-lose for TransCanada. They are either stuck with no legal route in Nebraska or a bad route that risks the critical Ogallala Aquifer and the precious Sandhills,” Kleeb said. “We remain confident the President will stand with farmers, ranchers, and tribal communities over a foreign oil company that wants to get tar sands to the export market.”
The final approval for Keystone XL now rests with President Obama. Obama hasn’t said definitively whether he’d approve the project, but earlier this week the White House said that the president would veto the pro-Keystone legislation that Republicans have said they’d make a priority for this session. The House is set to vote Friday on legislation to approve the pipeline, a 1,179-mile pipeline that, if built, could carry up to 830,000 barrels of oil from Canada’s tar sands region to refineries in the Gulf Coast and Midwest each day.
Environmental activist and 350.org founder Bill McKibben said on a press call in December that President Obama’s ultimate decision on Keystone XL will be a test as to whether he truly is serious about combating climate change. If the president does end up approving the pipeline, he said, it will be difficult for other countries to take the U.S.’s other efforts on climate change seriously.
“The minute you start to look closely on the tar sands in Canada you realize that this isn’t even a close call,” he said. “This is just about the first stuff that should be left in the ground. The longer it gets looked at the more laughable the whole absurd thing is.”
Kleeb and Brian Jorde, the assistant attorney who represents the landowners in the case, said in a press call Friday that, due to the specifics of the court’s decision, the door is open to further legal action on the case. They declined to comment further on the issue, however.