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Did These Nebraska Landowners Just Block the KXL Pipeline?
A judge's ruling puts another obstacle in the way of TransCanada's controversial project to transport tar sands oil across the American heartland.

Nebraska landowners opposing the Keystone XL tar sands oil pipeline scored a major victory in court today—one that could significantly delay the $5 billion project by at least temporarily blocking its construction through the Cornhusker state.

A state judge agreed with the three property owners that a 2011 law clearing the way for the pipeline to pass through Nebraska violated the state’s constitution, because it put the decision in the hands of Governor Dave Heineman and took it away from the state’s public service commission, which regulates pipelines and other utilities.

Heineman’s subsequent action empowering pipeline builder TransCanada to exercise eminent domain and seize land for the project is thus “declared null and void," according to the decision from Lancaster County District Judge Stephanie Stacy.

Dave Domina, the attorney representing the landowners, said in a statement that TransCanada will now be forced to seek approval from the public service commission for its latest route." TransCanada has no approved route in Nebraska," he said. "TransCanada is not authorized to condemn the property against Nebraska landowners. The pipeline project is at standstill."

Poltiico reported this afternoon that Heineman has already filed notice of his intention to appeal the ruling to the Nebraska Supreme Court. TransCanada is no doubt rooting for him. “We are disappointed and disagree with the decision,” said Shawn Howard, a company spokesman. “We will now analyze the judgment and decide what next steps may be taken."

The lawsuit was brought by three Lancaster County residents—Randy Thompson, Susan Dunavan, and Susan Luebbe—who believe the 1,700-mile proposed pipeline from the Canadian tar sands to Gulf Coast refineries would threaten their land. They objected both to what they consider TransCanada’s strong-arm tactics and to the Nebraska government’s decision to give a foreign company the right to seize their property. (I wrote extensively about the landowners and their case for OnEarth in September of last year.)

“This is a big win for Nebraska’s landowners,” said Susan Casey-Lefkowitz, director of the international program at NRDC (which publishes OnEarth). "This welcome decision affirms what Jane Kleeb of Bold Nebraska and many Nebraskans have said all along: that the Keystone XL tar sands pipeline poses an unacceptable risk to the land and water that farms, families and communities in the state depend on.”

The decision would also appear to present a new obstacle for federal consideration of the project, which needs a permit from the State Department to proceed. Casey-Lefkowitz said “it’s impossible now to determine whether this project is in the national interest because we don’t have an approved route.” If TransCanada were to propose a new route bypassing Nebraska or the opposing landowners, she said, that would require a new environmental impact assessment by state and federal authorities.

Indeed, as Politico also reported this afternoon: "The State Department had previously said it would not judge the pipeline until officials in Nebraska had approved the project. Now, with Nebraska’s approval process overturned, it could prompt the Obama administration to further postpone its long-awaited verdict on whether to grant TransCanada permission to build the pipeline. The State Department was aware of Wednesday’s court decision, but said it would not comment on ongoing litigation. Alternately, the ruling could also force TransCanada to win the permission of every landowner along the route, a difficult task."

In a state where opposition to the pipeline has become firmly entrenched among some rural landowners, you bet it is.

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image of Ted Genoways
Ted Genoways, OnEarth's editor-at-large, is the author of The Chain: Farm, Factory, and the Fate of Our Food (HarperCollins, online at www.tedgenoways.com), an examination of Hormel Foods and the great recession. The recipient of a 2010 Guggenheim fellowship, Genoways has contributed to Bloomberg Businessweek, Harper's, Mother Jones, Outside, and his work has appeared in the Best American Travel Writing series. He edited the Virginia Quarterly Review from 2003 to 2012, during which time the magazine won six National Magazine Awards. MORE STORIES ➔
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