A[n] administration official familiar with the State Department's decision-making process, speaking on the condition of anonymity to discuss internal deliberations, said it is "highly unlikely that a decision will be made before the mid-term election" given the court's schedule.The Nebraska governor's office approved a new route through the state for the $5.4 billion pipeline last year. The old route was problematic, critics had said. Among other things, it endangered fragile wetlands of the state's sand hills. That was a major reason behind President Obama's 2012 rejection of TransCanada's original application to build Keystone XL. The company promptly submitted a new application with a new route through Nebraska. That's the one being contested in court.
"This is not because of politics. It’s just a reflection of the gravity of this decision," the official said. "It doesn’t make sense to have the agencies give us their best opinion on whether or not the Keystone pipeline should go forward if the information on which they base it changes dramatically, and it’s entirely possible the Nebraska Supreme Court could require a change in the route and nullify the opinions given to the Secretary of State about this project."
For decades Nebraska's elected five-member Public Service Commission had overseen approval of grain warehouses, taxis, buses and power lines. The commission was established for the same reason a state railway commission was set up in the late 1800s—as a means to keep governors from doing favors to railroad corporations. In 2011, the state legislature passed the Major Oil Pipeline Siting Act, which added pipelines to the commission's purview. But it then passed another law, the Oil Pipeline Route Certification Act. This transferred authority for approving Keystone XL to the governor's office without the Public Service Commission being involved.
Gov. Republican Gov. Dave Heineman did sign off on the pipeline, giving builder TransCanada the power of eminent domain. What many saw as an end run around the approval process brought a lawsuit from three landowners along the new route. And in February, state Judge Stephanie Stacy agreed with them, ruling that the method of approval was breached the state constitution. In April, Heineman asked the Nebraska Supreme Court to overturn Stacy's ruling.
The Obama administration had previously set May as the completion date for its lengthy review of whether the pipeline is in the "national interest," a requirement for any pipeline, bridge, tunnel or tramway that crosses international boundaries. The State Department has been assessing more than 2 million public comments and the views of several federal departments to determine whether Keystone XL actually is in the national interest or falls short.
It was widely expected that Secretary of State John Kerry would present his recommendation on the pipeline to President Obama sometime in May or early June. But the administration decided in April that it would wait until resolution of the Nebraska routing appeal.