TransCanada refiles Keystone XL application in Nebraska, the next anti-pipeline battleground

Native groups say they'll mobilize against the Keystone XL like they did with the Dakota Access pipeline. But Nebraska landowners are at the forefront of legal challenges.

Oil developer TransCanada has refiled its application to route the Keystone XL pipeline through Nebraska, the company said on Thursday, putting back on track a project rejected by then-President Barack Obama, that President Trump has promised to revive.

The application may open up a new front in efforts to block the massive pipelines that have become conspicuous symbols of fossil-fuel clout. So far, though, the first line of opposition seems likely to come through the courts, even as indigenous groups vow to mount the same sort of protests that won a temporary stoppage of the Dakota Access pipeline, a sister project.

Bold Nebraska, an opposition group, is planning a multi-pronged approach. It will launch a letter-writing campaign aimed at persuading the Nebraska Public Service Commission, an elected panel with four Republicans and one Democrat, to reject the pipeline.

Bold Nebraska says any oil spills could pollute the Ogallala Aquifer, a water source that is vital to several midwestern states, in addition to other environmental damage. But it will mount its legal challenge on eminent-domain grounds, headed by a group of some 82 landowners who refuse to let the pipeline run through their property.

“We’re going to fight this through the courts, on property rights,” said Jane Kleeb, who directs an umbrella group that includes Bold Nebraska, told Nebraska radio station KTIC in January. 

"It's a very frightening prospect that a foreign corporation can use eminent domain against landowners for their private gain," Ms. Kleeb told the AP.

TransCanada said in a statement on Thursday that it expected the review to conclude this year, calling the NPSC process “the clearest path to achieving route certainty for the project in Nebraska." The Commission typically responds to applications within seven months, or they can choose to postpone a decision for up to a year.

But Bold is confident that its legal actions will slow down the state-level approval process – despite Mr. Trump’s claims of having already “approved” the project.

“We still have very strong state rights in our country,” Kleeb said. “There is still a long eminent domain hearing process as well as a pipeline routing process. So you are looking at at least two years before they even get a permit in Nebraska.” 

If approved and constructed, the Keystone XL would run from the Canadian province of Alberta through Montana, South Dakota, and Nebraska, where it would connect with an existing pipeline to transport some 830,000 daily barrels of crude to Texas refineries. And a 2014 State Department review estimated that the project would create about 42,000 jobs nationwide and bring about $2 billion in direct and indirect earnings for workers . 

The Obama administration rejected the project in 2015, saying it would not make "a meaningful long-term contribution" to the economy, lower gas prices for consumers, or help the nation transfer toward clean energy. 

But prior to that decision, as the New Republic explained earlier that year, landowners were at the forefront of Nebraskan opposition, and managed to slow the process considerably, setting up the federal action that sidelined it: 

In 2012, the state legislature passed a law granting the governor authority to approve the route and bypassing Nebraska's Public Service Commission. A four-justice majority of the Nebraska Supreme Court ruled in January that the legislation violated the state constitution, but didn’t get the supermajority (five judges) to strike down the law—thereby preserving TransCanada’s plans. But landowners are still fighting TransCanada’s use of eminent domain on constitutional grounds, and in February a county court issued a temporary injunction halting TransCanada from acquiring land.

In addition, Native groups voiced frustration over what they see as a lack of adequate consultation over a project that crosses their lands. And following Trump’s January executive actions that revived both the Keystone XL and Dakota Access pipelines, many Dakota protestors said that they would mobilize to stop construction of the Keystone XL.

“We will be setting up camps in very strategic locations along the KXL route," Dallas Goldtooth, campaign organizer with Indigenous Environmental Network, told InsideClimate News. "We will fight Trump tooth and nail to ensure that this pipeline is not built."

This report includes information from Reuters and the Associated Press.