On January 9, 2015, the Nebraska Supreme Court upheld former
Nebraska Governor Dave Heineman's approval of TransCanada
Corp.'s Keystone XL pipeline route, removing a roadblock
frequently cited by President Obama as part of his hesitation to
sign a bill approving the project. The proposed
pipeline—which would move up to 830,000 barrels of oil a day
from Canada's oil sands to Gulf Coast refineries—has
become a hot political issue over climate change and economic growth.
The Nebraska lawsuit challenging the state's approval,
Thompson et al. v. Heineman et al., No. S-14-158, was premised on
plaintiffs' contention that a statute allowing the governor to
set the route violated the Nebraska Constitution. The suit was
filed in March 2013 by three landowners seeking a declaratory
judgment that the law violated the equal-protection, due-process,
and separation-of-powers provisions of the Nebraska Constitution,
along with its prohibition of special legislation. The suit alleged
that the bill unconstitutionally delegated to the governor powers
over a common carrier that exclusively belonged to the Nebraska
Public Service Commission, and unconstitutionally delegated plenary
authority over the exercise of eminent domain power that belonged
exclusively to the state legislature. The challenged law, L.B.
1161, allows "major oil pipeline" carriers to bypass the
regulatory procedures of the state's public service commission
and, as an alternative, permits pipeline carriers to obtain
approval from the governor to exercise the power of eminent domain
for building a pipeline in Nebraska.
The Nebraska Supreme Court actually voted 4 to 3 to uphold a
lower court judge's opinion that a law allowing the governor to
set the route violated the Nebraska Constitution and that the
landowner appellees had standing to raise the issue. However, under
the Nebraska Constitution, a five-vote supermajority is required
for the court to rule that a law is unconstitutional. Although the
majority bloc was in favor of overturning the pipeline-siting
route, it lacked the necessary five-vote supermajority.
Accordingly, L.B. 1161 remains intact and the former governor's
approval of the permit stands.
Although the Nebraska Supreme Court ruling focused on the
permitting process and state constitutional issues, President
Obama, and other opponents of the pipeline, have repeatedly alleged
concerns about the pipeline's impact on climate change. The
President has asserted that a pending review process within the
State Department should be completed before he makes a final
decision. The State Department review, known as a national-interest
determination, considers several factors, including the
pipeline's impact on energy security, the environment and
climate change, geopolitics, and the economy. Notably, in January
2014, the State Department issued a Final Supplemental
Environmental Impact Statement report in which it concluded that
the construction of the pipeline is unlikely to have significant
effects on climate-change-causing greenhouse gas emissions. The State Department
previously extended the time to complete its review process based,
in part, "on the uncertainty created by the on-going
litigation in the Nebraska Supreme Court...." On February 2,
2015, the EPA submitted comments to the Final SEIS. In its letter,
the EPA stated that it was providing comments now, rather than when
the Final SEIS was published, because of the possibility that the
Nebraska Supreme Court decision could have led to changes to the
Final SEIS. In its letter, the EPA disagreed with the State
Department's conclusions the construction of the pipeline is
unlikely to have significant effects on climate-change-causing
greenhouse gas emissions because of the recent large declines in
On the same day as the Nebraska Supreme Court ruling, the U.S.
House of Representatives passed a bill approving the route and, on
Monday January 12, the whole U.S. Senate cleared a procedural
hurdle allowing the Senate's version of the Keystone bill,
which had cleared the Senate Energy and Natural Resources Committee
on the previous Thursday, to be brought to the Senate floor for
debate. President Obama has formally threatened to veto the
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