On August 23, 2019, the Nebraska Supreme Court cleared one of the final hurdles for the XL pipeline by affirming the decision of the Nebraska Public Service Commission’s to approve a route through Nebraska, The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska. It was first announced in 2008 and has remained the focus of controversy and litigation for eleven years. It has undergone two route changes through Nebraska after the acquisition of a majority of the needed corridor easements. Many of the property owners who had signed those corridor easements were left laughing all the way to the bank. Several efforts to acquire easements from other owners by condemnation were dismissed as premature, as there was not yet an approved route.
Finally, TransCanada filed an application with the PSC for approval by the PSC of its preferred route. 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, but not the requested 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 decision to the Nebraska Supreme Court. Every procedural, evidentiary, statutory and Constitutional argument imaginable was raised. There was even a suggestion that the PSC should have approved an I-90 route (no part of Interstate 90 is within seventy-five miles of Nebraska). Also included in the challenges was the argument that the procedure violated property rights protected by condemnation law.
The appeal was thought to be placed on the fast track. Over a year and a half later, the Nebraska Supreme Court swept aside the appellants’ various arguments, noting 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. The PSC permit is an antecedent issue but is not part of a condemnation proceeding under the power of an eminent domain.
The court’s decision was unanimous, and the court had little trouble with any of the issues. For now, this long-awaited decision appears to remove Nebraska the middle of the legal battle, but the opposition has vowed to not surrender. A Montana federal court injunction still stands in the way, but the project continues to inch forward.
Bill Blake