Five Things You Need to Know About the Nebraska Keystone XL Court Ruling

This afternoon, Lancaster County District Judge Stephanie Stacy issued a ruling which finds that the law giving Governor Heineman of Nebraska the authority to approve a revised route for the Keystone XL pipeline violates the state’s constitution.

Here are five things you need to know about the decision:

1. The ruling has nothing to do with the merits of Keystone XL: As the first paragraph of the decision states, “[T]he issues before this court have nothing to do with the merits of that pipeline.”  It goes on to explain that the case “will not require consideration of the current pipeline debate, nor will be decision in this case resolve that debate” and “Decisions regarding the merits of TransCanada’s Keystone XL Pipeline are properly left to others.”

2. The decision is about process, not concerns about Keystone XL: Judge Stacy said the law was unconstitutional due to process because it wrested control of oil pipeline decisions away from the state regulatory body, the Nebraska Public Service Commission. As such, Judge Stacy ruled the law null and void: “[H]aving found LB 1161 [the Nebraska law] to be unconstitutional, governmental actions taken pursuant to that act, no matter how carefully performed, cannot stand,” she wrote in the decision.  However, as Dave Domina, the lawyer representing the landowners explained,

“This is not a commentary on the pipeline project. That subject belongs to the President of the United States exclusively. This ruling means that, in Nebraska, the Governor’s office has no role to play, and all state law decisions must be made by the Public Service Commission.”

Rep. Lee Terry (R-NE) issued a statement saying, “let me be very clear – this decision does not impede President Obama from doing the right thing after five years of delays and signing the permits to build the Keystone XL Pipeline.”

3. The State Department says Keystone XL is environmentally sound: The State Department’s Final Environmental Impact Statement released earlier this year found that the project posed no significant environmental risk.

4. The Nebraska Public Service Commission should be able approve the new route quickly: As Senator John Hoeven (R-ND) said in a statement, “Because the state of Nebraska made a thorough review of the alternative route, we would expect the Nebraska Public Service Commission to make the same decision as the governor in approving the new route and to do so in a timely manner.”  Senator Heidi Heitkamp (D-ND) echoed this statement: “Based on this ruling, my understanding is that — pending any appeals — it’s now up to the Nebraska Public Service Commission to determine if the Keystone XL pipeline should go through the state, and I hope the state’s PSC approves this project,” she said.

5. What’s next? That’s to be determined. As Elana Schor with Greenwire notes, “Whether today’s decision ultimately stalls or stops KXL’s long journey to a final decision on its presidential border-crossing permit, however, depends in significant part on how quickly an appeal may be filed and the resulting impact on a possible re-examination of the new KXL route by the state’s Public Service Commission (PSC).”  On that note, there has been some breaking news: Joe Duggan a reporter in Nebraska from State Line just tweeted, “Neb Attorney General Jon Bruning will appeal today’s decision striking down pipeline siting law.”  Nebraska could also move forward with a legislative fix.

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