Nebraska Landowners Hold Keystone XL at Bay With Lawsuit

TransCanada, the company behind the Keystone XL pipeline, has pulled out of a lawsuit launched by Nebraska landowners who oppose the project. The move ensures another delay of seven to 12 months in the Nebraska review process as the company seeks a legally approved route through the state.

A week after Hillary Clinton denounced the project, TransCanada’s decision has cheered anti-pipeline activists, who see it as another sign that that the tar sands oil pipeline is doomed, even though President Obama has not yet rejected or approved it.

“Everyone knows or expects the president to reject the project,” said Jane Kleeb, director of Bold Nebraska, a grassroots group that has spent years fighting the  pipeline that would run from Alberta to Nebraska.

While the Obama administration controls the pipeline’s future, individual states are responsible for approving the Keystone’s route within their borders. In Nebraska, resistance to the pipeline revolves around a small group of landowners who fear it will contaminate their water and land. They’re particularly concerned about the section of the route that crosses the Ogallala aquifer—a vital water source—and the Sandhills, an ecologically vulnerable area in north-central Nebraska.

The lawsuit against TransCanada centered around a controversial law passed in 2012, which gives the governor’s office the final say in routing pipelines. Then-governor Dave Heineman authorized the route the following year.

In January 2015, more than 100 landowners representing 81 properties along the Nebraska route sued TransCanada when the company began using eminent domain to obtain the rights to build Keystone on their land. The plaintiffs argued that TransCanada could not legally use eminent domain, because the state law that allowed the route was unconstitutionally circumventing the Nebraska Public Service Commission, the established authority on pipelines.

The next court hearing was scheduled for mid-October. Now that TransCanada has withdrawn from the case, the eminent domain claims against the landowners will be dropped.

Art Tanderup, a former teacher and landowner who was part of the lawsuit, said he was excited by the news. TransCanada “realized they’re not going to win this thing” in court, he said.  

TransCanada spokesman Mark Cooper said the company’s decision was based on the need for more certainty and “what’s going to get us the best opportunity to get this pipeline built.”

Cooper said there is a timeline for the Public Service Commission (PSC) review, which is expected to take seven to 12 months. He said TransCanada has decided that review is  a better alternative than a court battle that might reach the Nebraska Supreme Court, where there is no time limit, and where “we’d be further behind again if we were ultimately unsuccessful.”

Pipeline activists have long preferred the PSC process. Kleeb said the agency review provides clear deadlines and opportunities for citizens to intervene. It also grants the PSC the power to alter the proposed route, she said.

According to Cooper, TransCanada plans to submit its formal application to the PSC as early as Friday.

First proposed in 2008, the Keystone XL pipeline has languished in the federal review process for more than seven years—long enough that TransCanada had to re-apply last summer for a construction certificate in South Dakota (where a final decision is pending).

The pipeline was originally expected to sail through the Obama administration, but political and economic forces, along with persistent activism, have coalesced to imperil Keystone’s future. Canadian tar sands developers have cancelled various projects due to low oil prices, and President Obama has made it clear that his decision will depend on whether the pipeline—which would transport carbon-intensive tar sands oil—will significantly increase greenhouse gas emissions.

Tanderup credits the Keystone controversy for drawing him into activism. He knew little about pipeline or tar sands until a TransCanada representative  knocked on his door in 2013, asking Art and his wife Helen for permission to run the pipeline across their land.

After researching the project, the Tanderups decided they couldn’t support a project that could contaminate the land where they grow corn, soybeans and rye. The property has been in Helen’s family since the early 1900s, and they hope to leave it to their grandchildren.

“When it comes to protecting the land and the water and livelihoods, there’s a strong force that drives you to become active,” Art said.

Even though the lawsuit is over, the Tanderups’ activism—and their concern over tar sands’ carbon footprint—has changed their lives. The couple has installed enough solar panels on their property to supply 85 percent of their electricity, as well as the power for their Chevy Volt electric car.

“We believe everyone has to do their part in order to combat climate change,” Tanderup said. And he shares Kleeb’s optimism that Obama will reject the pipeline. “The sooner the better,” he said. “We cannot make an impact on climate if we do not keep those dirty fossil fuels in the ground.”