Nebraska Supreme Court Rules on Transcanada’s XL Pipeline Route by William Blake

William Blake

The Nebraska Supreme Court has affirmed the decision of the Nebraska Public Service Commission’s (PSC) to approve a route through Nebraska for the XL Pipeline, completing one of the final steps before construction of the controversial project can begin. A copy of the full decision can be read here.

The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska. First announced in 2008, it has remained the focus of controversy and litigation for eleven years. During that time, the project underwent two route changes through Nebraska, after acquisition of a majority of the needed corridor easements had already occurred. Several condemnation actions were dismissed as premature, until a final route was approved.

In 2017 the PSC, an administrative regulatory body with the power to determine whether a major oil pipeline route is in the public interest, approved a route. Transcanada had requested approval of its second proposed route, but that route met with substantial opposition. In November, 2017, the PSC approved a different route, closely paralleling the route of Transcanada’s earlier Keystone pipeline. A number of farmers and ranchers along the approved route, joined by several native American tribes and environmental groups, appealed the PSC’s decision to the Nebraska Supreme Court.

Although the appeal was thought to be placed on the fast track, over a year and a half later, the Nebraska Supreme Court finally entered its unanimous ruling. Rejecting the appellants’ various arguments, the court held that the question of whether a pipeline will be in the public interest of Nebraska is a question peculiarly left to determination by the PSC, and that a route application includes alternative routes. Of interest to condemnation lawyers, the court stated that the case did not relate to condemnation proceedings. Rather, the PSC permit is an antecedent issue that is not part of a condemnation proceeding under the power of eminent domain.

For now, this long-awaited decision appears to remove the Cornhusker State from the middle of the legal battle.

Contributed by OCA Nebraska Member William Blake

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