Nebraska Supreme Court decides alternative KXL route is valid
OMAHA, Neb. — The Nebraska Supreme Court ruled the Nov. 20, 2017, Nebraska Public Service Commission decision approving an alternative route of the proposed Keystone XL pipeline through Nebraska shall stand. This follows a Montana Federal Court ruling preventing construction of KXL.
The Supreme Court opinion followed oral argument in November 2018 and the four-day Nebraska PSC hearing in August 2017, where Nebraska landowners represented by Dave Domina and Brian Jorde of the Domina Law Group presented live and direct testimony from over 90 witnesses and tens of thousands of pages of evidence supporting landowners whose property and livelihoods would be directly negatively impacted by the proposed Keystone XL export tar sands pipeline route.
Although TransCanada had neither applied for nor requested approval of the so called “Mainline Alternative Route” the November 2017 3-2 decision by the Nebraska PSC did just that. On behalf of landowners, Domina Law Group argued that the pipeline was not in the public interest and focused on the jurisdictional prerequisite that the PSC may only approve an application that was actually before it for approval. The jurisdictional argument was at the heart of oral arguments that occurred on Nov. 1, 2018.
The Supreme Court, however, has found the PSC did have the powers to grant approval of a route for which TransCanada failed to request approval of or apply for.
“We believe our evidence and arguments clearly showed TransCanada failed to meet its burden of proof and that the very laws under which the route was evaluated are unconstitutional. Our evidence proved the preferred route would be detrimental to the lands of Nebraska, that there are no on or off ramps for Nebraskans to actually use the pipeline, that there is no fixed entry point into Nebraska, and that the claims of increased tax revenues and jobs simply were not true, however, we will respect the court’s decision and prepare for the next steps,” Domina said.
Jorde reflected, “Nebraska has been the epicenter of this issue since the beginning almost a decade ago. We have said for years TransCanada’s preferred route was not an intelligent route and we, on behalf of our clients, realize this is one of many decisions that will affect the ultimate path of KXL through Nebraska, if any.”
TransCanada’s promises to the nation and Nebraska all along have been more jobs and tax revenues, however, at the PSC trial TransCanada’s witnesses admitted only six-10 permanent jobs would be created in Nebraska and they failed to rebut landowner evidence that state tax revenues would actual fall if the pipeline was to be constructed. Further, Nebraska’s public interests are not served by a 36-inch tar sands pipeline crisscrossing through and under the most fragile highly erodible soils of our state, the Ogallala Aquifer, and cutting across five major rivers.
Nebraska has been ground zero for legal challenges to the proposed KXL pipeline as Domina Law Group’s clients organized into a tight knit group in 2010 and have advanced significant litigation for the past nine years including: filing three state constitutional challenge lawsuits, defending against TransCanada’s nearly 60 condemnation lawsuits, challenging the route approval application in front of the PSC, over 180 appeals, and multiple trips to the Nebraska Supreme Court.
Copies of Domina Law’s opening and reply briefs submitted to the Nebraska Supreme Court, as well as, videos of the Supreme Court oral arguments can be found here: https://www.dominalaw.com/legal-blog/2018/november/nebraska-supreme-court-hears-oral-arguments-in-k. ❖