Why Nebraska’s Supreme Court Decision Might be Bad News for Keystone XL

The Nebraska Supreme Court on Friday approved a route for the proposed Keystone XL pipeline through the state, by overturning a lower court’s ruling that the law behind it was unconstitutional. But environmental groups and lawyers for the landowners in the case say this might end up benefiting the fight against Keystone XL, and hurt Transcanada, when a congressional bill about the pipeline lands on President Obama’s desk in the coming weeks.

“Obviously we have a bloody nose this morning, but we are not down for the count. Transcanada is in a losing position because they have to defend a very tricky route,” said Jane Kleeb, the director of Bold Nebraska, an environmental group advocating against the pipeline.

The route that is now approved for Transcanada still crosses the Ogallala Aquifer, a major source of drinking water, as well as the extremely sensitive ecosystem of the Sandhills of north-central Nebraska. Environmental advocates say that will give President Obama more of a reason to veto pro-Keystone XL legislation.

Meanwhile, the landowners in the case just want to keep the pipeline out of their backyard.

“It is just a ridiculous idea that a foreign corporation can have the power of eminent domain to start with—but then the idea that our legislature would grant them [that power]…to me that’s totally outrageous,” Randy Thompson, a landowner and lead plaintiff in the Nebraska case, said Friday. “I think that anyone who owns property in the United States should be outraged by that proposition. We need to address this, not only in Nebraska, but as a nation.”

“It’s time for our president to put an end to this damn thing, and let us get back to our lives and get back to raising food for America.”

The Nebraska law in question, LB 1161, had granted eminent domain powers to Transcanada, and gave Nebraska’s governor the authority to approve the route. In February, a district court sided with three landowners whose property would be used to make way for the pipeline, calling the law unconstitutional. Friday’s Supreme Court decision, however, overturned that ruling.

Nebraska Governor Pete Ricketts was quick to praise the decision, saying it clears the way for the “safest pipeline ever built,” reports Fred Knapp of Nebraska Public Radio.

But the Supreme Court’s decision [PDF here] was not based on the merits of the case at all, but rather on procedural technicalities: Four out of the seven Nebraska Supreme Court judges concluded that the law was unconstitutional, but the Nebraska Constitution requires a supermajority of five judges to sway the opinion of the court. Some of the seven-judge panel chose not to participate in the vote, leaving the court deadlocked.

"[Because] there are not five judges of this court voting on the constitutionality of [the legislation], the legislation must stand by default," the court said in its ruling. "[The] citizens cannot get a binding decision from this court."

“No judge found the bill to be constitutional. It was allowed to stand on a technicality,” said Ken Winston, a policy advocate for Nebraska Sierra Club.

Brian Jorde, the lawyer for the Nebraska landowners in the case, told reporters on Friday that the decision leaves room for further legal challenge against the pipeline, but that he would not discuss the details of that until Monday.

“Essentially [today’s outcome] is a nondecision open to further review,” he said.

With the Nebraska case out of the way, the decision will come down to Obama. The Senate energy committee voted Thursday in favor of a bill that would immediately approve Keystone XL for construction, and the House of Representatives voted Friday to pass a similar bill.

According to the White House, Obama plans to veto the bill, regardless of the Nebraska decision.

"If presented to the president, he will veto the bill,” White House spokesman Eric Schultz said in a statement on Friday.