Approved Keystone XL route

LINCOLN — The corporation behind the Keystone XL oil pipeline urged a Nebraska regulator Tuesday to amend a recent order approving a route for the controversial project.

The five members of the Nebraska Public Service Commission heard oral arguments from attorneys for and against the commission’s Nov. 20 approval of a pipeline route.

A lawyer for TransCanada Corp. said Tuesday that the company wants to amend its application, which gained approval on a 3-2 vote. Allowing changes to the application and the PSC’s final order would address questions that could prompt more legal challenges and further delays, the lawyer added.

“We think the commission has the perfect opportunity right now to erase any such concern and prevent the risk of relitigating these issues,” said James Powers, an Omaha attorney who represents TransCanada.

Pipeline opponents said the routing law allows only rejected applications to be amended. The PSC approved a route, however flawed that approval might have been, said David Domina, an Omaha lawyer who represents affected landowners.

In addition, the law gives the PSC seven months to render a decision on the pipeline application, and that deadline elapsed on Nov. 23, Domina argued.

“The gun has sounded; the game is over. You have no jurisdictional authority now to back up ... so they can amend,” he said.

TransCanada had asked the PSC to endorse what it called the preferred route for the underground 36-inch pipeline, which would carry 830,000 barrels daily from Canada’s tar sands region to refineries on the Texas Gulf Coast.

But in an unexpected decision, the PSC approved the “mainline alternative route,” which the company also had included in its application.

The slightly longer alternative route parallels a portion of the company’s original Keystone pipeline, which went into service in 2010.

Powers said Tuesday that the company agrees that the alternative route meets the public interest, which was the fundamental determination the PSC had to make before approving the application.

Domina and other opponents disagreed. They said that the law compels the PSC to consider a single route and that TransCanada must file a new application if it wants to use the alternative route.

For example, they argued, some landowners along the alternative route did not receive the required notice that their land could be subject to eminent domain.

The commission has 60 days to make a decision on TransCanada’s request. The Nov. 20 order would then probably be appealed to the Nebraska Court of Appeals.

The project was first proposed in 2008, but it has been stymied by regulatory requirements, political maneuvering and an epic struggle between environmentalists and fossil fuel developers. Then-President Barack Obama denied a federal permit for the pipeline in 2015, a decision promptly reversed when President Donald Trump took office.

TransCanada has said it will decide this month whether enough financial support exists for the Keystone XL to justify completing the $8 billion pipeline. In the meantime, the company and pipeline opponents have been meeting with landowners along the alternative route.

joe.duggan@owh.com, 402-473-9587

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