Key­stone XL devel­oper seeks Ne­braska’s ap­proval for route


The Cana­dian com­pany that wants to build the Key­stone XL pipeline is tak­ing steps to cir­cum­vent one of the ma­jor road­blocks in Ne­braska.

But in seek­ing ap­proval Mon­day for the same con­tentious route through the state, Tran­sCanada could cre­ate another round of lengthy de­lays in an al­ready drawn-out process.

It also in­di­cates a new push for the US$8 bil­lion Canada-to-Texas oil pipeline in a state where op­po­nents have re­peat­edly thwarted ef­forts to build the pro­ject. U.S. Pres­i­dent Barack Obama has in­di­cated that he may re­ject a fed­eral per­mit for the pro­ject, as he did in 2012 when he ac­cused op­po­si­tion Repub­li­can Party law­mak­ers of set­ting an ar­bi­trary dead­line.

For­mer Gover­nor Dave Heine­man ap­proved the Ne­braska route in 2013 un­der a state law that al­lowed Tran­sCanada to use em­i­nent do­main against hold­out landown­ers, but op­po­nents sued and the pro­ject has been mired in state courts ever since.

The state’s Public Ser­vice Com- mis­sion, which reg­u­lates pipe­lines, taxis and other “com­mon car­ri­ers” used for trans­porta­tion, of­fers another av­enue for ap­proval — one op­po­nents have said they would have pre­ferred the com­pany use in the first place be­cause the PSC can im­pose ad­di­tional re­quire­ments. How­ever, the PSC’s even­tual de­ci­sion can be ap­pealed.

Tran­sCanada an­nounced last week that it would with­draw its em­i­nent do­main claims to the land on the pipeline’s pro­posed route and in­stead seek ap­proval through the com­mis­sion. Le­gal ex­perts said the com­pany may have de­cided not to risk a le­gal bat­tle to try to up­hold the 2013 pipeli­ne­sit­ing law, which the Ne­braska Supreme Court al­lowed to stand by de­fault in Jan­uary. Op­po­nents then filed a nearly iden­ti­cal law­suit with landown­ers who were di­rectly af­fected by Tran­sCanada’s use of em­i­nent do­main.

The case, which is set to go to trial Oct. 19, is widely ex­pected to re­turn to the state’s high­est court, and if it sides with the landown­ers, Tran­sCanada would have to ap­ply to the PSC any­way.

Landown­ers at­tor­ney Dave Dom­ina said they want the pipeli­ne­sit­ing law to be in­val­i­dated to elim­i­nate any chance that com­pany of­fi­cials try to use it again.

Dom­ina said the de­ci­sion to with­draw its em­i­nent do­main claims will de­lay the pro­ject fur­ther, point­ing to a state law that im­poses a two-year wait­ing pe­riod on new em­i­nent do­main pro­ceed­ings if the orig­i­nal one is aban­doned.

At­tor­neys for Tran­sCanada said that law doesn’t ap­ply, be­cause the com­pany with­drew their law­suits against landown­ers be­fore the pro­ceed­ings were of­fi­cially con­sid­ered “aban­doned” un­der state law.

“Those who be­lieve con­tin­u­ous de­lay of this pro­ject is some kind of vic­tory couldn’t be any fur­ther from the truth,” Tran­sCanada spokesman Mark Cooper said Tues­day, also not­ing that the com­pany will “reini­ti­ate” em­i­nent do­main pro­ceed­ings “if nec­es­sary.” Cooper said 91 per­cent of landown­ers along the Ne­braska sec­tion of the route have agreed to ease­ments, and that em­i­nent do­main is a “last re­sort.”

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