A Lancaster County District Court has struck down the governor's decision to approve Keystone XL's pipeline route through the state in Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014). As described in a previous blog, LB 1161 was passed in 2012 to give Governor Dave Heineman the authority to approve the route rather than having the state's Public Service Commission (PSC) make the decision. The court found that the PSC--not the governor--is constitutionally empowered under Nebraska Constitution Art. IV § 20 to play the lead role in approving the pipeline's route. The PSC was created in the late 1800's to prevent precisely this kind of overreaching by politicians who were inclined to grant political favors to powerful railroad executives who wanted to expand their routes through private property. "If such abandonment or abolition of the PSC's regulatory control were permitted, the protection afforded to Nebraska citizens by the constitutionally created and empowered PSC would cease to exist." Thompson, supra, at 43.
The court found "no set of circumstances" under which LB 1161 could be upheld. Under the court's ruling, LB 1161 is unconstitutional and void, and the governor's action in approving the pipeline route is also null and void. Accordingly, the court permanently enjoined the state from authorizing the pipeline route pursuant to LB 1161. This means that the state is also prohibited from allowing Transcanada to exercise eminent domain to obtain easements over private property for the pipeline.
Governor Heineman vowed to appeal the ruling, but there's no doubt that the decision could cause more delays in finishing the pipeline. If and when the legislature fixes the constitutional problem by giving authority back to the PSC, the PSC will have to decide whether to approve the current pipeline route. If the PSC alters the route or any other specifications, the State Department will have to prepare another supplemental Environmental Impact Statement or Environmental Assessment to analyze the impacts of any significant changes.
At the very least, President Obama and Secretary John Kerry would be wise to withhold approval until the dust settles on the state's decision-making processes. Better still, President Obama could simply deny the permit as failing the "national interest" test, given the serious potential for pipeline leaks and greenhouse gas emissions, and the broader negative implications for creating a more sustainable energy portfolio for America's future.
No one needs yet another "Unnatural Disaster," as Christine Klein and I explain in our new book.
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Sandra Zellmer | February 20, 2014
A Lancaster County District Court has struck down the governor’s decision to approve Keystone XL’s pipeline route through the state in Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014). As described in a previous blog, LB 1161 was passed in 2012 to give Governor Dave Heineman the authority to approve the route rather than having […]
Rena Steinzor | February 19, 2014
Two and a half weeks ago, a Duke Energy ash pond in North Carolina spilled up to 39,000 tons of coal ash and 27 million gallons of contaminated water after a stormwater pipe underneath the pond broke. The spill coated the bottom of the Dan River for 70 miles with gray sludge—five feet thick in […]
William Funk | February 17, 2014
In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his “executive authority,” pending congressional action. There followed a laundry list of initiatives that he said he would take on his own. Predictably, Republicans have railed against the […]
Thomas McGarity | February 12, 2014
At long last, the comment period on OSHA’s silica proposal has closed and the next phase in this rule’s protracted timeline will commence. In the four months since OSHA released the proposal, the agency has received hundreds of comments. They run the gamut, from the expected support of unions and other advocates for working people, […]
Matthew Freeman | February 11, 2014
A group of eight CPR Member Scholars today submitted a letter to Reps. David Schweikert and Suzanne Bonamici, the chair and ranking member, respectively, of the House Committee on Science, Space, and Technology’s Subcommittee on the Environment. The letter levels a series of powerful criticisms at Schweikert’s proposed “Secret Science Reform Act,” yet another in […]
Anne Havemann | February 7, 2014
Anchorage, Alaska is more than 4,000 miles away from the Chesapeake Bay, yet Alaska joined 20 other states on Monday in asking a federal appeals court to overturn the EPA-led plan to restore the Bay, known as a Total Maximum Daily Load (TMDL). While Alaska’s interest in the Bay-wide TMDL is murky, the history of […]
Sidney A. Shapiro | February 7, 2014
The recent chemical spill disaster in West Virginia has brought into sharp focus the weak measures we have in place for safeguarding people and the environment against exposures to harmful chemicals. State and civil justice systems have helped to fill the resulting void by providing individuals who have suffered harmful exposures with an opportunity to […]
Matt Shudtz | February 4, 2014
Today, separate House committees will hold hearings that address two federal agencies’ efforts to regulate toxic chemicals. The House Energy and Commerce Committee’s Subcommittee on Environment and the Economy will hold its fifth hearing on issues arising out of ongoing efforts to reform the Toxic Substances Control Act (TSCA). Simultaneously, the House Education and Workforce […]
Anne Havemann | February 4, 2014
Every day, we are presented with more evidence of the need to inspect for environmental violations and enforce the nation’s laws. The evidence is stark in the Chesapeake Bay region where, in 2012 alone, just 17 large point sources reported illegal discharges of nitrogen totaling nearly 700,000 pounds. These violations put the watershed states behind […]