Property Rights

Eminent Domain & the Keystone XL Appeal in the Nebraska Supreme Court

What is the Keystone XL Appeal about – and what is it not about?

In November 2017, the Nebraska Public Service Commission surprised almost everyone when it approved a route through the state for long embattled Keystone XL Pipeline. However, it was not the route submitted or presented to the Commission by TransCanada, and it was not the route to which the opponents responded. The approved route veered off the proposed route in the Northern part of Nebraska and continued southeasterly to meet up with what the Commission called the Mainline alternative route, which is the same path on which the original Keystone pipeline was constructed in 2008. Of course, it is easy to suggest such a path (to everyone except many of the landowners in that path) with the idea that there is no need to reinvent the wheel.

The primary problem with the mainline route and the primary basis for the appeal to the Nebraska Supreme Court is not whether it is a good route or whether the pipeline is even a good idea. It also involves no issue regarding the use of the power of eminent domain, with the exception that one requirement for filing a condemnation case is that TransCanada must be able to show to the court that it has obtained all needed permits. It cannot do so while the approved route is not final.

The appeal issues on appeal involve questions of procedure, involving due process arguments and also the question of whether the application for approval of a route is only for that route, or does it give the Commission the broad authority to select the route it determines best? The appeal is not an opportunity for the Court to select a route or to decide whether the pipeline should be built, although many voices are publicly attempting to inject those arguments into the case. The Appeal is a matter of whether the Commission followed proper procedure in reaching its decision. The Commission’s statutory authority on the issue is less than clear, and there is no clear precedent.

The appeal is in the briefing process and the Nebraska Supreme Court is expected to hear arguments before the end of 2018. See In the Matter of the Matter of TransCanada Keystone Pipeline, LP, case no. S-17-1331.