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Oil pipeline pumping station in rural Nebraska is shown on Feb. 16, 2013. (Shannon Ramos/Flickr)

Keystone Pipeline Has New Headaches – Beyond Washington

The controversial Keystone XL pipeline encounters new obstacles that go beyond the politics of the nation’s capital.

President Barack Obama is expected as early as next week to veto a bill approving the multi-billion project, but he’s not Keystone’s only problem. Pending challenges also await in Nebraska and South Dakota—two states that the 1,179-mile (1,897-kilometer) northern leg of the pipeline would cross as it moves oil from Hardisty, Alberta to Steele City, Neb.

Right now, the pipeline’s owner—Calgary-based TransCanada—lacks an approved route through Nebraska and a useable construction permit in South Dakota. Until these problems are fixed, whatever happens in Washington, D.C. won’t matter.

On Feb. 25, Nebraska’s Holt County will hold a hearing on whether to expedite the schedule for resolving a legal challenge to Keystone’s route.  Last week, a county judge issued a temporary injunction to stop TransCanada from using eminent domain to force landowners to sell rights allowing the pipeline on their property.

As a result, TransCanada agreed not to use eminent domain anywhere in Nebraska until the state’s Supreme Court finally settles the legal wrangling over the state law that approved Keystone’s route across the state. Just when that happens is difficult to say.

“Both sides are looking for clarity. The sooner, the better,” says TransCanada spokesman Mark Cooper, adding the company expects the process will probably take about a year.

“It could take a year or two years for the Supreme Court to hear the case,” says Jane Kleeb, director of the anti-pipeline group Bold Nebraska, adding the latest Nebraska injunction is a “huge victory” for opponents.

The two sides are enmeshed in a protracted fight. Proponents say Keystone will provide jobs and bolster North America’s energy security by ensuring delivery of Canadian oil. Opponents say it will foster the development of Alberta’s oil sands, which emit more heat-trapping carbon dioxide when burned, and thus exacerbate global warming. (See related story: “Do Plummeting Oil Prices Weaken Case for Keystone?“)

TransCanada, which first proposed the Keystone XL project in 2008, seemed to be making progress earlier this year. The new GOP-controlled Congress said it would force an Obama decision and for the first time, both the House and Senate approved legislation approving the project although not by veto-proof margins. (See related post: “Keystone XL Veto Threat: Does “No” Really Mean No?

Also, the Nebraska state Supreme Court issued a decision in January that upheld the law approving the Keystone route in that state. Yet that ruling didn’t prevent other lawsuits from challenging the law. (See related post: “Nebraska Ruling Throws Keystone XL Decision Back to State Department“)

So in late January, after TransCanada filed paperwork to begin using eminent domain to acquire land from owners who didn’t agree to sell easement rights, landowners sued. Kleeb says about 40 landowners in Holt County and another 20 in York County object to the pipeline on their property. TransCanada says it has approvals from 90 percent of Nebraska landowners along the pipeline’s path.

“For us, it’s the last resort,” Cooper says of eminent domain, adding TransCanada prefers to work with landowners to reach voluntary agreements.

Not all landowners agree. In South Dakota, rancher Paul Seamans says he initially opposed Keystone because of the way TransCanada “treated us, bullied us.” Now, he says he’s also concerned about the potential environmental damage, citing possible pipeline spills into waterways and the climate change impact of Canada’s oil sands extraction.

So Seamans, who leads the grassroots group Dakota Rural Action, along with 42 other individuals and groups are challenging TransCanada’s bid to extend its construction permit in South Dakota.

In March 2010, the state’s Public Utilities Commission approved such a permit as long as the company met 50 conditions and began construction within four years. Since TransCanada was unable to begin construction, given legal appeals in Nebraska and delays in the federal review process, its permit has essentially lapsed.

In September, the company filed paperwork to certify that it continues to meet the 50 conditions. Now it’s up to the PUC to decide.

“It will all culminate in the the first week of May with a public hearing,” says PUC chairman Chris Nelson, noting the hearing could last four or five days. He says there’s no deadline for its decision but the PUC will act quickly. “When I say expeditiously,” he says, “I mean it.”

“We know we have strong support in the state,” Cooper says of South Dakota, adding polls show two-thirds of residents back Keystone and 100 percent of landowners along the pipeline route have agreed to easement rights so eminent domain won’t be needed.

Still, Seamans says there are nearly three times as many groups or individuals challenging the construction permit now than did five years ago. “The tribes have got involved quite a bit more,” he says, noting their concern about protecting tribal lands.

Kleeb, whose Nebraska group is also intervening in the South Dakota case, expects the PUC will grant TransCanada’s certification but might tweak the pipeline’s route through the state. She says such a revision might necessitate a new supplemental environmental impact statement from the State Department, which has responsibility  to review Keystone because it crosses the U.S. border.

The State Department has already spent years studying the environmental impacts of various Keystone routes. TransCanada split the initial, 1,700-mile project into two parts and in January 2014, it finished building the the southern leg—from the Midwest to Gulf Coast refineries.