Nebraska Supreme Court overturns lower court ruling blocking Keystone XL pipeline route

TransCanada pipeline under construction.

TransCanada pipeline under construction.

Now it's all up to President Obama.

Kate Sheppard reports:

In a victory for proponents of the Keystone XL pipeline, the Nebraska Supreme Court ruled on Friday that the pipeline's proposed route through the state can go forward.

The decision means that TransCanada, the company seeking to build the pipeline, can build the route that Nebraska's former governor approved in 2013. The court ruling was split, with four of the court's seven judges agreeing with a lower court that the 2012 law used to grant TransCanada that permission was unconstitutional. However, Nebraska requires a supermajority of at least five judges to strike down the law. "We believe that Nebraska citizens deserve a decision on the merits. But the supermajority requirement … coupled with the dissent’s refusal to reach the merits, means that the citizens cannot get a binding decision from this court," the court wrote in the majority opinion. […]

The high court's ruling overturned a lower court decision issued last February by Lancaster County District Judge Stephanie Stacy. She decided for three Nebraska landowners who had filed a lawsuit against the state. She declared the law unconstitutional and void because it had taken away the state Public Service Commission's control over the routing of pipelines and made this a matter for the governor.

Nebraska foes of the pipeline claimed that TransCanada, the Canadian-based company seeking to build it, wrote the bill that made the transfer of power. The lawsuit also argued the state didn’t have authority to grant a foreign company condemnation powers.

In the wake of the lower court ruling, the Obama administration said it would wait until after the Nebraska Supreme Court reviewed the matter before announcing its own decision to approve or reject TransCanada's application for a permit to build the pipeline.

Under executive orders first issued in 1968, the State Department has the responsibility for approving international pipelines (drawbridges, tunnels and conveyor belts). The department has been reviewing the latest much-derided environmental impact statement on Keystone XL, a process that generated more than two million public comments. While the State Department has been delegated the responsibility for approval, the authority still rests with the president. With the Nebraska ruling now in hand, the administration might announce its own decision about the pipeline within days.

The Senate and the House have repeatedly sought to circumvent presidential authority in the matter. But it failed to garner the needed 60 votes in the last attempt in November. With Republicans having gained a Senate majority, another attempt is now underway.

There is no doubt that this time congressional backers of Keystone XL will be able to produce the requisite filibuster-proof vote to transfer authority for approving the pipeline from the executive branch to Congress. But the administration has indicated that Obama will veto this move, just as he did in January 2012. To override a veto, 67 senators would have to agree. That seems highly unlikely.