A Nebraskan activist? Wait, you say, isn’t that an oxymoron? But the typically stoic, non-litigious citizens of Nebraska are indeed standing up and taking notice, and the nation is starting to take notice of them.
A few days ago, a Washington Post headline predicted, “Nebraska trial could delay Keystone XL pipeline.” As you may already know from the news and my previous blogs, the State Department released a draft supplemental environmental impact statement (EIS) on the pipeline in March. It initiated this supplemental review to take into account a revised pipeline route through Nebraska (around 200 miles of the pipeline’s 1,179-mile route would be situated there).
The draft EIS concluded that Alberta’s oil sands would be developed with or without Keystone XL; as such, it indicated that the pipeline’s impacts on greenhouse gas emissions and climate change would be minimal. The Environmental Protection Agency’s comments on the draft EIS are extremely critical of its analysis of the project's effect on climate change. The Agency also highlighted the State Department’s failure to consider alternative routes that avoid critical water resources, such as the Ogallala High Plains aquifer, in Nebraska and surrounding states.
President Obama stated that he would reject the pipeline if it would “significantly exacerbate” GHGs. The President has also expressed concern that the pipeline would do little to stimulate the economy or create jobs. Ironically, the economic impact on the Midwest could be negative—the pipeline, which is designed to move crude oil to Gulf Coast refineries and then on to world markets, could actually make gas prices in the Midwest go up. So, the Midwest would get all of the downsides and few of the advantages if the pipeline were built.
The State Department’s final EIS, and the final decision by the President and Secretary John Kerry, is expected this fall.
Meanwhile, events in Nebraska are taking on a life of their own. A lawsuit filed by Nebraskan ranchers and a grassroots organization, Bold Nebraska, is pending in state court (Thompson v. Heineman, Neb. Dist. Ct., No. CI 12-02060). Earlier this summer, the court rejected the state's motion to dismiss their case, and set a Sept. 27 trial date.
The lawsuit alleges that the state legislation that established a new pipeline routing process is unconstitutional under Nebraska law. Instead of having the state regulatory agency—the Public Service Commission—make the routing decision, the legislation allows Nebraska Governor Dave Heineman to approve the pipeline route, which he did earlier this year. His approval also authorized Transcanada’s use of eminent domain to condemn private property along its path. The plaintiffs argue that the legislation unlawfully delegated to the Governor both the routing decision and the decision to allow eminent domain, without imposing any substantive safeguards or standards, thereby violating due process requirements. In addition, it’s a piece of “special legislation,” enacted for the benefit of just one corporation, which violates equal protection principles. Finally, it denies citizens any avenues for meaningful judicial review (other than a constitutional challenge like this one).
If the plaintiffs prevail on any one of these arguments, the Nebraska pipeline route would be tossed out, as would the legislation’s process for approving new routes. TransCanada would need to seek approval for its route from the Public Service Commission, and it could not exercise eminent domain over houses, farms, and ranches along the way until it had received all necessary approvals and permits. The decision would impact the decision-making process in Washington, DC, too, because the State Department could not issue a final EIS on the impacts of the pipeline when the route across Nebraska remains in doubt.
Those who question the need for activists, lawyers, and courts should take note. Litigation may be messy, expensive, and lengthy, and it’s an imperfect means of resolving disputes. But it’s one of the few effective slingshots that local “Davids” have against a well-heeled international Goliath like TransCanada.