Pipeline siting law challenged; landowners divided

Pipeline critic Susan Dunavan doesn't want the Keystone XL crossing through her land. (Photo by Fred Knapp, NET News)
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September 24, 2012 - 4:27pm

Nebraska environmental officials are evaluating the latest route proposed for the Keystone XL oil pipeline. But opponents say under the state’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 she’s worked three decades to preserve and restore. “This native prairie here doesn’t look like much because of the drought, but there’s big bluestem, little bluestem, switchgrass, Indiangrass – almost a hundred different plants here on this pasture, different times of the year,” she said.

Further reading

  • Lawsuit challenging state's pipeline siting law
  • State's request for lawsuit to be dismissed
Soon, Dunavan fears, something brand new could be planted here: the Keystone XL oil pipeline. “It’ll come from that northwest corner there, where the neighbor’s cornfield is, and it’ll go diagonally across south of the neighbor’s dam, across there, straight across through the gully, all the way to the right of the cottonwood trees,” she said, sketching out the route it would take through her land.

Dunavan is one of three landowners along the pipeline’s proposed route who filed suit challenging Nebraska’s pipeline siting law. This spring, the Legislature passed a law to give pipeline companies a choice: They can seek route approval from the state’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 it’s the route pipeline company TransCanada is taking. But David Domina, the landowners’ lawyer, said the law containing that option is unconstitutional.

“Our 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,” Domina said.

The Nebraska Attorney General’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 – that is, taking private property for public uses – it certainly can require approval by the PSC or the governor before eminent domain is used.

That won’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. “These are where it will cross the road,” he said. “They’re only going to catch me about one-and-a-third acres, and that includes the easement.”

Photo by Fred Knapp, NET News

Pipeline supporter Jim Klute has already sold an easement to let the Keystone XL cross his land.

Klute’s already sold an easement, allowing the pipeline to go through his land, and said TransCanada’s paid him very well for what they’re going to do. The company’s also promised to make up for any crop losses due to construction.

Klute acknowledges his situation is different from Dunavan’s. “I can see her point a little bit with her native grass,” he said. However, he added “I think it’ll come back.”

Dunavan said she hasn’t been able to get an agreement with TransCanada’s agents on restoring her property. But she said she doesn’t think there is bad blood between her and her neighbors who have agreed to let the pipeline come through. “I don’t feel any resentment for my neighbors that have signed and I hope they don’t think I’m some radical just because I don’t believe that it’s a good thing. I’m just trying to look to the future. I just don’t know if we really need this,” she said.

Dunavan said she expects controversy over TransCanada’s plans to continue. “We’re hoping they just go away.” she said, laughing, “But I don’t think that’s going to happen.”

Gov. Dave Heineman says the state is following the law that’s being challenged in court. “We’ll see what the courts say,” he declared. “But in the meantime, we’re going forward with what’s expected of us: to get this environmental impact review done by the end of December so that we can continue to move forward.”

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 it’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. “In Texas, for example, where we’re constructing the Gulf Coast project, professional activists and others have used the courts to try and delay the project,” Howard said. “Even though those matters may be appealed, we’re still permitted to go ahead with the activities and we’re still given the legal authority to move forward. So that’s an example of how we’ve dealt with these in other locations.”

And Howard said the company wants to begin construction as soon as possible if its route is approved. “We 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,” he said.

 But a lawyer for those challenging Nebraska’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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