A ruling by a Nebraska judge erects a major obstacle to the Keystone XL oil pipeline.
Attorney Dave Domina says Lancaster County District Judge Stephanie Stacy ruled a 2012 law unconstitutional.
“And, therefore, TransCanada does not have the power of eminent domain and does not have an approved route across Nebraska,” Domina tells Nebraska Radio Network affiliate WNAX. “The rationale is that the Nebraska Constitution requires that those decisions be performed and made strictly by the Nebraska Public Service Commission.”
Domina represented three landowners who sued the state. Domina, an attorney from Omaha, also is a Democrat running for United States Senate.
The legislature approved the 2012 law as a follow-up to an agreement reached with TransCanada during a special legislative session in 2011. LB 1161 gave the governor authority to approve or reject pipeline routes through the state after the Nebraska Department of Environmental Quality reviewed proposed routes and made a recommendation.
Judge Stacy ruled the Nebraska State Constitution gives exclusive regulatory control over pipeline companies, such as TransCanada, to the Nebraska Public Service Commission. The judge ruled the legislature violated the constitution by giving such power to the governor.
“This statute gave that authority to the governor and the court concluded, as we argued, that the delegation was unconstitutional, so the statute is void,” according to Domina.
Domina says the court ruling effectively rescinds Gov. Dave Heineman’s notification to President Barack Obama that Nebraska legal procedures have been satisfied. TransCanada has no approved route through Nebraska, according to Domina, who adds that the pipeline project is at a standstill in the state.
Domina cautions, though, that the ruling is not a commentary on the Keystone XL pipeline project, but is narrow in focus.
“This is a case entirely about property rights and about when the power of eminent domain can be used against Nebraska citizens,” Domina says. “And a great deal of the reason that this case was brought is because of the way that TransCanada, as a company, has conducted itself.”
Attorney General Jon Bruning says the state will appeal the decision.
Gov. Heineman issued a short statement in wake of the decision:
“I’m pleased that Attorney General Bruning is appealing this decision. This is an important issue for the State of Nebraska.”
Jerry Oster, WNAX, contributed to this story.
Click here to read State of Nebraska Notice of Appeal.