In court, landowners seek to hit reset on Keystone XL pipeline route -
Published Saturday, September 28, 2013 at 12:00 am / Updated at 10:17 am
In court, landowners seek to hit reset on Keystone XL pipeline route

LINCOLN — An attorney for landowners suing to stop the Keystone XL oil pipeline told a judge Friday that the state has illegally allowed a Canadian company to condemn private land for the project.

As the proposed pipeline awaits a decision on federal approval, the legal battle that played out Friday could spell more delays for a project that seeks to move heavy Canadian crude oil to refineries on the U.S. Gulf Coast.

After about 35 minutes of arguments, Lancaster County District Judge Stephanie Stacy told attorneys for both sides that she will issue a written opinion at an unspecified future date.

Before the hearing, several dozen people who view the project as an environmental threat lined up on the courthouse steps and held signs with anti-pipeline slogans. The same opponents filled most of the 50 seats in the courtroom, and others were turned away.

Attorneys retained by Trans­Canada Corp., the company that wants to build the pipeline, also attended. Supporters of the project argue that it will create needed construction jobs while bringing more oil to the United States from a friendly trading partner.

But inside the courtroom, the familiar debate gave way to technical legal arguments over the constitutionality of a 2012 law used to reroute the pipeline.

The 2012 pipeline routing law, known as Legislative Bill 1161, created two ways for a pipeline company to seek state routing approval. It could submit an application with the Public Service Commission or with the governor.

State officials wanted the original route changed to avoid the Sand Hills, where the pipeline was seen as a threat to the sandy soil and shallow groundwater table. Using the 2012 law, TransCanada had its second route reviewed by the Nebraska Department of Environmental Quality. The department then sent its review to Gov. Dave Heineman, who approved the new route early this year.

The pipeline law violates the Nebraska Constitution on several fronts, said Omaha attorney David Domina, who represents the landowners. By taking responsibility for pipeline review away from the Public Service Commission, he said, lawmakers improperly delegated their responsibility to the governor.

Domina said the Legislature also violated the state constitution by giving authority over eminent domain to the governor. Although TransCanada has not used condemnation to secure easements for the project, it has that authority.

“The Legislature simply violated that supreme law of the state when it adopted LB 1161,” Domina said.

Deputy Attorney General Katherine Spohn told the judge that nothing in LB 1161 changed the state's eminent domain law. Long before senators passed the new law, pipeline companies were able to use the power of eminent domain when they could not reach agreement with private landowners.

She also argued that a provision of the state constitution allows the Legislature to designate certain classes of pipeline carriers for reviews outside the Public Service Commission. That's what LB 1161 did by establishing route approval through the governor's office.

Regardless of what the judge decides, appeals are likely. TransCanada has been waiting for five years for approval by the U.S. State Department.

TransCanada wants to build a pipeline that would carry up to 830,000 barrels of oil sands crude daily. The 1,700-mile pipeline would run 4 feet underground through parts of six states, including Nebraska.

President Barack Obama denied the original permit application in 2012 after congressional supporters tried to impose a deadline for a decision.

Contact the writer: Joe Duggan    |  

Joe works in the Lincoln bureau, where he helps cover state government, the Legislature, state Supreme Court and southeast Nebraska.

New public employee pay data: Douglas, Lancaster, Sarpy Counties, plus utilities
Nebrasks health officials to advertise jobs via drive-thru
Coral Walker named Omaha police officer of the year
A recap of what got done — and what didn't — in the 2014 legislative session
'The war is not over,' Chambers says, but legislative session about is
Sarah Palin, Mike Lee coming to Nebraska for Ben Sasse rally
Prescription drug drop-off is April 26
Database: How much did Medicare pay your doctor?
Rather than doing $250K in repairs, owner who lives in lot behind 94-year-old house in Dundee razes it
PAC funded by Senate candidate Ben Sasse's great-uncle releases Shane Osborn attack ad
Teen killed at Gallagher Park was shot in head as he sat in SUV, friend who was wounded says
NB 30th Street lane closed
State Patrol, Omaha police conduct vehicle inspections
After all his bluster and bravado in the courtroom, Nikko Jenkins found guilty of 4 murders
Bernie Kanger formally promoted to Omaha fire chief
U.S. House incumbents have deeper pockets than their challengers
Nancy's Almanac, April 17, 2014: Trees save money
Ex-Iowan behind landmark free speech case recounts story in Bellevue
Gov. Heineman signs water bill; sponsor calls it 'landmark legislation'
New UNO center strengthens ties between campus, community
Senate candidate Shane Osborn to include anti-tax activist Norquist in telephone town hall
Threat found in Millard West bathroom deemed 'not credible'
Kelly: New $24M UNO center embodies spirit of newlywed crash victim
High school slam poets don't just recite verses, 'they leave their hearts beating on the stage'
Attorney: Man accused of trying to open plane's door needs psychiatric evaluation
< >
Breaking Brad: At least my kid never got stuck inside a claw machine
We need a new rule in Lincoln. If your kid is discovered inside the claw machine at a bowling alley, you are forever barred from being nominated for "Mother of the Year."
Breaking Brad: How many MECA board members can we put in a luxury suite?
As a stunt at the Blue Man Group show, MECA board members are going to see how many people they can stuff into one luxury suite.
Kelly: Creighton's McDermotts put good faces on an Omaha tradition
A comical roast Wednesday night in Omaha brought fans of Creighton basketball laughter by the bucketful. This time it was McJokes, not McBuckets, that entertained the Bluejay crowd.
Kelly: New $24M UNO center embodies spirit of newlywed crash victim
Jessica Lutton Bedient was killed by a drunken driver at age 26 in 2010. Thursday, the widowed husband and other family members will gather with others at the University of Nebraska at Omaha to dedicate a permanent memorial to Jessica.
Breaking Brad: How much would you pay for a corn dog?
The Arizona Diamondbacks have a new concession item: a $25 corn dog. For that kind of money, it should be stuffed with Bitcoin.
Deadline Deal thumbnail
Dr. Welbes Natural Health Clinic
$129 for 2 LipoLaser Sessions with Additional Complimentary Services ($605 value)
Buy Now
< >
Omaha World-Herald Contests
Enter for a chance to win great prizes.
OWH Store: Buy photos, books and articles
Buy photos, books and articles
Travel Snaps Photo
Going on Vacation? Take the Omaha World-Herald with you and you could the next Travel Snaps winner.
Click here to donate to Goodfellows
The 2011 Goodfellows fund drive provided holiday meals to nearly 5,000 families and their children, and raised more than $500,000 to help families in crisis year round.
Want to get World-Herald stories sent directly to your home or work computer? Sign up for's News Alerts and you will receive e-mails with the day's top stories.
Can't find what you need? Click here for site map »