Keystone Battle Renewed

TransCanada Files Application in Nebraska for Route Approval

Todd Neeley , DTN Staff Reporter
TransCanada filed an application with the state of Nebraska Thursday for a route for the Keystone XL pipeline. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- Here we go again.

BOLD Nebraska is gearing up for another battle to stop TransCanada from building the Keystone XL pipeline in the Nebraska Sandhills, after the company filed an application with the state's public service commission Thursday for approval of a route.

The application comes after President Donald Trump's executive order cleared the way to complete the controversial project. The original pipeline plans faced numerous federal reviews and a presidential permit for the project was ultimately rejected by the Barack Obama administration.

A number of farmers and ranchers have opposed the pipeline for fear a pipeline accident could harm sensitive lands and the Ogallala Aquifer in the Sandhills.

Though BOLD Nebraska still strongly opposes the pipeline, the group said Thursday it was pleased the request was made with the state's public service commission.

"We are happy to see TransCanada actually following the law and our state constitution for the first time in the seven-year battle over Keystone XL," said Jane Kleeb, president of the BOLD Alliance.

"Keystone XL is a foreign-owned pipeline, using foreign steel headed to the foreign export market. BOLD continues to stand with farmers and ranchers to protect property rights from being infringed upon by a pipeline for their private gain. Keystone XL is and always will be all risk and no reward."

A Jan. 24 presidential memorandum to go along with the pipeline executive order on Keystone, however, directed the U.S. secretary of commerce to develop a plan requiring pipelines built in the United States to be built with steel and other materials made in the U.S.

In a press statement issued Thursday, a TransCanada spokesperson said the company is prepared to build the pipeline after years of study.

"This application has been shaped by direct, on-the-ground input from Nebraskans," said Russ Girling, TransCanada's president and chief executive officer.

"The thousands of Nebraskans we have met over the last eight years understand the value of this project and what it means to the state. As we have said consistently, safety and a respect for the environment remain our key priorities. We are listening and acting on what we have learned."

The company said the proposed route was evaluated by the Nebraska Department of Environmental Quality and approved by the governor of Nebraska in 2013.

"The preferred route avoids the area that is defined as the Nebraska Sandhills and is expected to have minimal environmental impacts in Nebraska," the company said in a news release.

"The review also included active consultation with landowners along the pipeline corridor where over 90% have signed voluntary easements to construct Keystone XL. The PSC process is the clearest path to achieving route certainty for the project in Nebraska and is expected to conclude in 2017."

PSC PROCESS

According to a news release from the state's PSC, TransCanada has the "burden" to establish a proposed pipeline route would serve the "public interest."

However, the PSC's task is limited to pipeline siting. That does include determining how or if the route will affect natural resources.

"In determining whether the pipeline carrier has met its burden, the act prohibits the commission from evaluating safety considerations, including the safety as to the design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, maintenance, and risk or impact of spills or leaks from the major oil pipeline," the PSC said in a news release Thursday.

State law gives the PSC 210 days after receiving an application to render a decision.

The PSC will open a yet-to-be-determined public comment period.

"The commission is committed to building a comprehensive record," said Jeff Pursley, PSC executive director. "We will follow all aspects of the law as we fulfill the duties assigned to us by the legislature."

Various farmers and ranchers rejected attempts by TransCanada in the past six years to buy land to build the pipeline. The company announced it would use eminent domain to acquire the land needed.

However, according to state law, TransCanada has to wait until September 2017 to use eminent domain. The company has estimated it would need to use eminent domain on about 2% of the land needed.

LONG BATTLE

The 1,700-mile pipeline is expected to carry about 830,000 barrels of oil per day from Alberta oil fields to Texas refineries.

In 2014, the Nebraska Legislature passed LB1161 that allowed then Nebraska Gov. Dave Heineman to approve a new proposed Keystone route. A lawsuit filed by state landowners along the proposed route challenged the law, saying the state should have allowed the PSC to approve the route.

That lawsuit alleged the governor's action violated personal property rights of farmers, ranchers and other landowners, because the law did not include a provision that allows public input ahead of the governor's decision.

In January 2015, the state's high court ruled Heineman had the authority to approve the route without PSC involvement.

Although the Obama administration's state department found in multiple reviews that building the pipeline would have no appreciable effect on climate change or the environment in general, the administration twice rejected TransCanada's request for a presidential permit.

In January 2016 TransCanada filed a North American Free Trade Agreement claim after the Obama administration rejected the application for a presidential permit. The company claimed the rejection was "arbitrary and unjustified."

As of Thursday afternoon, the company had not dropped the $15 billion NAFTA claim for costs and damages.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(AG/ES)