Court Monitor

Keystone Pipeline Wins One, For Now, in Nebraska

The much-publicized Keystone XL pipeline project would send heavy crude oil through an enormous pipeline stretching from western Canada through the heartland of the United States, down to refineries along the coast of the Gulf of Mexico. The southern portion of this pipeline has already been in operation from Oklahoma to Texas, but opponents have held up construction of its longest segment: from Alberta, Canada, to Steele City, Nebraska.

Supporters of this pipeline point out that its construction would create jobs for Americans, but some estimates are that only 9,000 jobs would be needed, and once in operation perhaps fewer than a hundred American jobs will be necessary to run it.

This pipeline would traverse Nebraska, which passed a law in 2012 specifically authorizing its governor both to approve a route for it and grant authority to a Canadian corporation to use eminent domain to seize portions of property that stand in its path. Opponents of the project are primarily environmentalists, but also include critics of delegating eminent domain to a private, even foreign, corporation. The House of Representatives has voted to approve this project ten times, but the Democrat-controlled Senate blocked it and President Obama promises to veto it.

Opponents of the Keystone XL pipeline sued in Nebraska state court to derail the project by preventing it from passing through this essential part of the route. On January 9, 2015, the Nebraska Supreme Court agreed, rendering a 4-3 decision declaring the Nebraska statute to be unconstitutional because it deprived the Nebraska Public Service Commission of its sole authority over determining the route. Thompson v. Heineman, 2015 Neb. LEXIS 3 (Neb. 2015).

In most jurisdictions, a 4-3 decision by the Supreme Court against a law would render it invalid. But in Nebraska, a supermajority of five votes by its Supreme Court is needed before the Court can invalidate a law. So the Nebraska statute remains in effect.

The three dissenters did not uphold the law, but merely felt that the plaintiffs lacked standing to challenge it. The dissenters preferred that such a challenge be brought by landowners who would be directly affected by the pipeline route itself, not merely taxpayers. Hence a new lawsuit, based on stronger legal standing, could gain support of the five Justices needed to strike down the Nebraska statute enabling construction.

The CEO of the U.S. Chamber of Commerce's "Institute for 21st Century Energy," Karen Harbert, declared victory. "Now that the pipeline route in Nebraska has been settled, it is time for President Obama to approve the pipeline -- no more excuses, no more delays," she said.

But the endorsement by the Chamber of Commerce is hardly reassuring, as it has also pushed for amnesty for illegal aliens, many of whom displace Americans on domestic construction projects. And after the Kelo v. New London decision in which conservatives sided with a homeowner against eminent domain that benefited a large corporation (Pfizer), a local Chamber of Commerce praised the town for seizing Mrs. Kelo's home for the benefit of Pfizer. Subsequently the corporation never completed its development as promised.

Despite exhaustive national debate over the Keystone XL pipeline for more than year, one poll indicated that a majority of Americans think the oil would benefit Americans. But even that is doubtful, as most of the oil may be exported, and more litigation in Nebraska state court will add further uncertainty to this project.