Latest Developments Regarding Eminent Domain and the Keystone XL Pipeline

Since President Obama’s veto of a Senate bill authorizing construction of the Keystone XL pipeline in February, speculation regarding the ultimate fate of the pipeline project has continued to swirl. As we fast approach the seven-year anniversary of the Keystone XL pipeline’s original proposal, Congress, the Canadian government, residents along the pipeline’s proposed path and TransCanada (the oil company behind the pipeline) all appear to be getting anxious about the President’s and the State Department’s impending decision on whether to allow the project to move forward.

State Department Continues to Review, TransCanada Fears Rejection

When asked about the status of the Keystone XL Pipeline in August, a White House spokesman stated that the project remains under review by the State Department. Pursuant to a 2004 executive order, pipelines crossing the U.S. border are subject to a government-wide review and a presidential permit. An Associated Press review of cross-border pipeline applications since 2004, concluded that the U.S. government has either approved or rejected every application, except for the Keystone XL, in an average of 478 days.  The Keystone XL application review, on the other hand, has required nearly 5 times as long and been a source of significant public and political debate.

However, at least one source close to the matter at TransCanada believes that a rejection has been preordained. As TransCanada continues to publicly hold out hope for the project, an inside source told the CBC that the U.S. government is “just waiting for the right time” to announce its decision to pull the plug. The source also suggested that TransCanada is consulting attorneys about a possible NAFTA lawsuit should the company’s application be denied.

Nebraska Property Owners’ Challenge of Eminent Domain Law Set for Trial

In July, there was slight progress in the lawsuit landowners filed challenging the constitutionality of the Nebraska law authorizing the use of eminent domain for the Keystone XL pipeline. As we have previously discussed, the lawsuit seeks to prevent TransCanada from using condemnation to obtain easements from private property owners along the pipeline’s planned corridor. A trial date has been set for October 19, during which the District Court of Holt County, Nebraska will hear arguments on the constitutionality of Legislative Bill 1161.

Will Canadian Election Delay Keystone XL Pipeline Decision?

In other pipeline news, Bloomberg reported in August that Canada’s upcoming election for Prime Minister may delay the U.S.’s decision on the pipeline. With the project leading to rising tensions between the U.S. and Canadian governments, a former U.S. ambassador to Canada has suggested that it may be in both nations’ best interests for the U.S. to wait to work with Canada’s newly-elected leader. As has been widely reported, the two primary candidates in the Canadian election have deeply opposing views on the Keystone XL pipeline.

Of course, caught in the middle of all this are the property owners who may face condemnation proceedings if the Keystone XL pipeline is ultimately approved as well as those who have already negotiate easement agreements with TransCanada. Owners’ Counsel of America continues to monitor the political activity, the application review and legal battles that will impact the property rights of individuals in Nebraska and across the country.  To locate an attorney in your state, call us toll-free at (877) 367-6963 or contact us online today.

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