6 things you need to know today about Nebraska and the Keystone XL Pipeline

(Photo by Grant Gerlock, NET News)
Pipeline opponents gather at a previous meeting. (Photo by Fred Knapp, NET News)
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May 3, 2017 - 6:45am

The future of the controversial Keystone XL pipeline rests, once again, in Nebraska.

Map of preferred and alternate routes proposed by TransCanada for the KXL pipeline. (NET Graphic)

On Wednesday, May 3, a marathon public hearing will give supporters and opponents the opportunity to share opinions with the body deciding if laying the pipe across the state is a good idea.

The Nebraska Public Service Commission will take testimony at the York Convention Center.

Here’s some background you should know about the status of the project.

Why is the pipeline back in the news?

Different presidents. Different policies.

When Donald Trump won the election last November, most observers expected him to act on a campaign promise to move the Keystone XL pipeline forward. The speed with which he acted was a surprise.

In March, the Trump administration, through the U.S. Department of State, issued a presidential permit “…to construct, connect, operate, and maintain pipeline facilities at the U.S.-Canadian border.”

The action instantly reversed a 2015 determination by President Obama that the pipeline was not in America’s interest.

TransCanada praised the change in American policy, calling it a “significant milestone” in the project. In 2012 the company estimated its 36-inch diameter crude oil pipeline would cost $8 Billion. Five years later that cost has likely only increased.

In a prepared statement, Nebraska Gov. Pete Ricketts said the White House action followed “years of extensive environmental reviews that confirm Keystone XL complies with federal safety and environmental standards.”

Pipeline opponents were not surprised by the decision and vowed to continue their opposition through state regulators and the courts.

“We will not allow that to happen," Jane Kleeb, founder of Bold Nebraska, told the Lincoln Journal-Star in March. She called Trump "arrogant" and added “we will never allow an inch of this foreign steel pipeline carrying foreign tar sands that can pollute our water and take away property rights...”

Larry Wright, chairman of Nebraska’s Ponca Tribe, told Native News Online there had been almost no consultation with tribal leaders and emphasized “the pipeline may go over land that was historically Ponca land,” and the tribe has “the right to protect cultural and sacred sites.”

At the time of his announcement, Trump proclaimed, "TransCanada will finally be allowed to complete this long overdue project with efficiency and speed.”

However, the state of Nebraska, not the federal government, remains a final barrier in the pipeline’s approval. The gatekeeper for a permit is the Public Service Commission (PSC).

Why is the Nebraska Public Service Commission so important?

The PSC is likely to be the last remaining government entity to pass judgement on the siting and selection of a route of the Keystone pipeline. Nebraska gives the commission responsibility in statute with the “Major Oil Pipeline Siting Act.”

While the transported oil will be carried from Canada to Nebraska’s border where it splits for delivery to Texas and Illinois for processing, the Keystone project only crosses three states before connecting with existing pipe at a terminal in Steele City, Nebraska.  Montana and South Dakota have granted state-level permits and the easements are in place. A series of legal and bureaucratic delays left Nebraska as the hold out.

The PSC’s review must include studies of its impact on the environment, groundwater, soil, plants, and wildlife. There are also reviews of the economic impact including potential employment and possible tax benefits.

During the photo op signing the presidential order, Trump was told by TransCanada Chief Executive Russell Girling the company faced opposition in the state.

"Nebraska? I'll call Nebraska," Trump replied. (A spokesperson for Governor Ricketts said while Trump has not called, there have been discussions between White House staff and the governor’s office.)

It’s not that simple, since a months-long, deliberate review process is required by state law. The first step will be a public hearing called by the PSC.

What is going to happen at the hearing in York?

First, to be clear, there will be nothing decided when the public hearing concludes on the evening of May 3 in York, Nebraska. A decision is not due for months.

At this meeting the public will be given the opportunity to share opinions with the commissioners who will ultimately issue or deny a permit.

To accommodate the dozens of people hoping to testify for and against the pipeline project, the hearing officer, Tim Schram, will limit individual speakers to five minutes each. Even with those restraints, it’s possible all 10 hours scheduled to hear testimony will be filled.

The Sierra Club and Bold Nebraska have chartered busses to accommodate opponents of the project. Union workers and organizations supporting the oil industry will have their own representatives on hand.

Additional public hearings may be added to the schedule. A comment form is also available at www.Nebraska.gov. There are several other steps in the process to come.

What are the next steps?

The big event prior to any final ruling will be a hearing held over five days early in August. This is a “quasi-judicial hearing” that is organized somewhat like a trial in a court of law.

At that time the Public Service Commission will take additional testimony from parties with a direct stake in the outcome of the project along with the results of the studies on the engineering and environmental aspects of the project.

There are several steps and stages that lead up to that event. Those with a stake in the pipeline’s fate, known as intervenors, will be able to seek information from the opposing side, submit their own evidence and exhibits, and find witnesses in support of their stand.

After the August hearing, and in advance of the final order, final written briefs are submitted for commission members to review.

A final decision could come as soon as mid-September but likely no later than November.

That’s the last step for Nebraska regulators. It may not be the last hurdle for the pipeline.

What other challenges remain?

There is likely to be a lot of activity in the state and federal courts over the Keystone pipeline for months to come.

In 2015, Nebraska landowners along the route sued to block the taking of their land. TransCanada eventually withdrew its filings of eminent domain. Some are likely to sue again. Those lawsuits would be months away.

Meanwhile, two lawsuits challenging the federal government’s power to issue the permit have been filed in Montana, where the pipeline would cross the border with Canada.   

The first, filed by the Indigenous Environmental Network and the North Coast Rivers Alliance, argues the State Department's environmental impact statement is inadequate and conflicts with federal law.

The two groups ask the court to issue a preliminary injunction blocking TransCanada from "taking any action that would result in any change to the physical environment in connection with the project" until the court reviews opponent's claims.

A coalition of environmental groups filed a separate action in the U.S. District Court for the District of Montana. The brief submitted in March notes the same environmental impact statement used to deny the permit to TransCanada was used by the Trump administration in its justification for issuing the permit.

Groups filing the lawsuit include the Center for Biological Diversity, the Sierra Club, the Bold Alliance, and the Northern Plains Resource Council.

The U.S. Department of State and the Department of Interior are named as defendants in both cases. TransCanda requested they be included as an interested party in defending against the challenge.

And after that?

Under the best of circumstances, construction of the pipeline may not take place for some time. In court filings TransCanda explained “due to legal uncertainty” the company is “not in a position to begin construction of the XL Pipeline for at least a year.”



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