Pipeline siting law challenged; landowners divided
September 25th, 2012
Lincoln, NE-Nebraska environmental officials are evaluating the latest route proposed for the Keystone XL oil pipeline. But opponents say under the stateâ€™s constitution, a different state agency should be doing that evaluation.
One of those opponents is Susan Dunavan, who lives on 80 acres near McCool Junction, south of York. On a recent afternoon, Dunavan showed a visitor her land. Where an untrained eye sees dried up grass, Dunavan sees land sheâ€™s worked three decades to preserve and restore. â€œThis native prairie here doesnâ€™t look like much because of the drought, but thereâ€™s big bluestem, little bluestem, switchgrass, Indiangrass â€“ almost a hundred different plants here on this pasture, different times of the year,â€ she said.
Soon, Dunavan fears, something brand new could be planted here: the Keystone XL oil pipeline. â€œItâ€™ll come from that northwest corner there, where the neighborâ€™s cornfield is, and itâ€™ll go diagonally across south of the neighborâ€™s dam, across there, straight across through the gully, all the way to the right of the cottonwood trees,â€ she said, sketching out the route it would take through her land.
Dunavan is one of three landowners along the pipelineâ€™s proposed route who filed suit challenging Nebraskaâ€™s pipeline siting law. This spring, the Legislature passed a law to give pipeline companies a choice: They can seek route approval from the stateâ€™s Public Service Commission or they can ask the Department of Environmental Quality to make a recommendation and the governor to approve it.
Using the process involving the DEQ and the governor would be quicker in the case of the Keystone XL, and itâ€™s the route pipeline company TransCanada is taking. But David Domina, the landownersâ€™ lawyer, said the law containing that option is unconstitutional.
â€œOur position is that the Legislature made a mistake when it created a route whereby the Public Service Commission can be bypassed and the governor can actually authorize the construction of a pipeline and the exercise of power of eminent domain,â€ Domina said.
The Nebraska Attorney Generalâ€™s office is defending the law. Attempts by NET News to interview the lawyer handling the case were unsuccessful. But in a brief, the office argued the Legislature can limit the control exercised by the Public Service Commission. It also said since the Legislature can give private corporations the right to use eminent domain â€“ that is, taking private property for public uses â€“ it certainly can require approval by the PSC or the governor before eminent domain is used.
That wonâ€™t be necessary in the case of landowners like Jim Klute. Klute lives outside York about 10 miles northwest of Dunavan, as the crow flies. He already has one pipeline, carrying natural gas, running through his property. On a recent morning, he showed a visitor a couple of pink flags indicating where the Keystone XL is supposed to cross the road and run through a corner of his field where beans have just been harvested. â€œThese are where it will cross the road,â€ he said. â€œTheyâ€™re only going to catch me about one-and-a-third acres, and that includes the easement.â€
Pipeline supporter Jim Klute has already sold an easement to let the Keystone XL cross his land.
Kluteâ€™s already sold an easement, allowing the pipeline to go through his land, and said TransCanadaâ€™s paid him very well for what theyâ€™re going to do. The companyâ€™s also promised to make up for any crop losses due to construction.
Klute acknowledges his situation is different from Dunavanâ€™s. â€œI can see her point a little bit with her native grass,â€ he said. However, he added â€œI think itâ€™ll come back.â€
Dunavan said she hasnâ€™t been able to get an agreement with TransCanadaâ€™s agents on restoring her property. But she said she doesnâ€™t think there is bad blood between her and her neighbors who have agreed to let the pipeline come through. â€œI donâ€™t feel any resentment for my neighbors that have signed and I hope they donâ€™t think Iâ€™m some radical just because I donâ€™t believe that itâ€™s a good thing. Iâ€™m just trying to look to the future. I just donâ€™t know if we really need this,â€ she said.
Dunavan said she expects controversy over TransCanadaâ€™s plans to continue. â€œWeâ€™re hoping they just go away.â€ she said, laughing, â€œBut I donâ€™t think thatâ€™s going to happen.â€
Gov. Dave Heineman says the state is following the law thatâ€™s being challenged in court. â€œWeâ€™ll see what the courts say,â€ he declared. â€œBut in the meantime, weâ€™re going forward with whatâ€™s expected of us: to get this environmental impact review done by the end of December so that we can continue to move forward.â€
Once he gets the review, the governor has 30 days to decide whether or not to approve the route and notify the federal government, which has the final say. But that timetable is according to the law being challenged. The state is trying to get that lawsuit dismissed. If it succeeds, lawyers challenging it say they will appeal, which could take a year.
Would TransCanada begin construction even if legal appeals are still underway? Spokesman Shawn Howard said itâ€™s premature to speculate. But he referred to construction activity on the already-approved southern leg of the pipeline, from Cushing, Oklahoma to the Gulf Coast. â€œIn Texas, for example, where weâ€™re constructing the Gulf Coast project, professional activists and others have used the courts to try and delay the project,â€ Howard said. â€œEven though those matters may be appealed, weâ€™re still permitted to go ahead with the activities and weâ€™re still given the legal authority to move forward. So thatâ€™s an example of how weâ€™ve dealt with these in other locations.â€
And Howard said the company wants to begin construction as soon as possible if its route is approved. â€œWe obviously want to begin as soon as we can in 2013. (The) schedule for a decision on the presidential permit is late in the first quarter of 2013 is my understanding. We can mobilize fairly quickly after that,â€ he said.
But a lawyer for those challenging Nebraskaâ€™s siting law says if the lawsuit succeeds, TransCanada would have to start over, trying to get the Public Service Commission to approve its route though the state.
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