by Bill Kelly and Fred Knap, NetNebraska.org
A deeply-divided Nebraska Supreme Court on Friday upheld the law under which former Gov. Dave Heineman approved the proposed route of the Keystone XL pipeline through the state. And while attention shifted to Washington, where President Obama is expected to make a final decision on the pipeline, further legal wrangling in Nebraska remained a possibility.
Nebraska Attorney General Doug Peterson, on his first full day on the job, said Friday’s ruling was good news, since now there were “no legal hindrances” to interfere with digging the trenches through Nebraska for the Keystone XL Pipeline.
‘It’s an involved decision but we are pleased that the statute was held to be still in effect,” Peterson said. “We can move ahead with the Keystone pipeline.” (Click here to read the opinion).
There may be additional issues to resolve. The court’s opinion left untouched the central legal question that prompted the lawsuit, whether it was constitutional to give the governor a role in approving the route of the pipeline.
The decision proved frustrating for pipeline opponents because a majority of the court supported their position that passage of LB 1161, the bill that gave additional authority to the governor in selecting the route of the pipeline, was in conflict with the state’s constitution.
“They essentially sat on their hands and didn’t vote on the meat of it,” said Brian Jorde, a member of the legal team representing pipeline opponents.
A deeply divided seven-member court was an impasse over whether the landowners who filed the case had the standing to file the lawsuit. (Click here to watch the oral arguments in the case).
Commonly, those taking legal action must have what is known as standing, or a personal stake in the matter, to qualify as an interested party. In a dissent to the main opinion, three of the judges said they refused to vote on the main issue because they felt the wrong people brought the case to court.
Thus, a minority of the court blocked further consideration of the remaining issues.
Nebraska requires a super-majority of the five out of the seven judges, what’s known as a super-majority, to rule state laws unconstitutional.
Justice William M. Connolly, summarizing the nature of the decision, wrote “there is neither a five-member supermajority to hold that L.B. 1161 is unconstitutional nor a three-member minority which could uphold its constitutionality.”
The opinion concluded “due to this impasse, the constitutional challenge to L.B. 1161 cannot be resolved one way or the other in this case.”
Jim Hewitt, a former law professor who authored a history of the Nebraska Supreme Court, says it appears the dissenting judges decided “there was no reason to for the court and go ahead and rule on the constitutionality (of the pipeline regulation) and that being the case, those three made the decision not to vote.”
The 64-page court opinion provided ammunition for those upset with how state officials dealt with routing the pipeline.
At the heart of the opponents’ case was a change in state law. In 2012 the Legislature gave TransCanada, owner of the pipeline, the option of having then-Gov. Dave Heineman sign off on the project’s route across the state. The majority of court agreed taking full authority for that decision away from the elected Public Service Commission violated the state’s Constitution.
Judge Connolly for the court’s majority wrote: “the Governor and the current members of the (Public Service Commission) have acquiesced in the Legislature’s disregard of the Nebraska Constitution’s distribution of powers. The need for citizens to have standing to raise a matter of great public concern is apparent.”
In the eyes of pipeline opponents, the tone and substance of the opinion should give little comfort.
“Unfortunately for TransCanada this could potentially could be the worst possible outcome and decision because essentially it is a non-decision open for further review,” Jorde said.
The three dissenting judges, while offering no opinion on the constitutionality of the issue, concede in their counter-opinion that the unresolved issues “should be decided by a court as expeditiously as possible.”
Jorde would not comment on options for other legal action but said “there is clearly another case that can be brought to break this loose.”
He told reporters during a conference call the opponent’s legal team will discuss potential next steps on Monday.
Attorney General Peterson said, “to find it unconstitutional you needed five judges to do that and obviously they weren’t able to do that” adding he had no plans to reevaluate the legality of course taken by the legislature.
Reaction to Friday’s Nebraska Supreme Court decision was swift, but what comes next, and when, remained unclear. Russ Girling, president and CEO of pipeline company TransCanada, hailed the decision. “Obviously we’re very pleased with the Supreme Court ruling,” he said.
Jane Kleeb of BOLD Nebraska, a leading pipeline opponent, expressed regret. “Obviously we have a bloody nose this morning, but we are not down for the count,” she said. “We will continue to stand up and fight this risky route.
TransCanada’s Girling suggested the fight over the route in Nebraska is over. “The issues in Nebraska should be behind us. And we would hope we could get on with an approval in a very, very short time frame,” Girling said.
While lawyers for pipeline opponents suggest they’ll continue their fight in the courts, attention from both sides now switches to Washington. Girling said the U.S. State Department was nearing the end of its final review when it suspended the process because of legal uncertainty over the Nebraska route. That review will now resume. “We would expect that process could be done in a couple of months,” he said.
Even some pipeline opponents said the end of the fight is near, although they’re obviously hoping for a different outcome. “There is no remaining uncertainty. There is no ambiguity about whether the President has authority. There is nothing standing in the way any longer for the President to make his decision,” said Sierra Club Executive Director Michael Brune. “There are a few more steps in the process, but the President’s decision should be imminent and should be happening in the next several weeks.”
But State Department spokeswoman Jen Psaki refused to give a timetable. She said the department will now ask eight other federal agencies for their input. The agencies will obviously be given a sufficient and reasonable amount of time to provide input. But I don’t have an assessment on the amount of time at this point,” she said.
The final decision will be up to President Obama. That’s what rancher Randy Thompson, one of the landowners who brought suit against the Nebraska law, is counting on. “It’s time for the President to put an end to this damn thing. And let us get back to our lives – get back to raising food for America,” Thompson declared.
Meanwhile, TransCanada’s Girling says if the company does get approval, it will take two full summers to build the line, but construction could start sooner. “Depending on when we get the permit, what time of year, that will also determine sort of where along the route we would start. And there are certain places that are more conducive to winter construction than others. And we may start at the south end of the pipeline rather than the north end of the pipeline depending on the time of year,” Girling said.
The south end of that portion of the pipeline that has yet to be built is in Steele City, Nebraska.