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TransCanada Claims Nebraska Keystone XL Route Still Valid Despite Recent Court Ruling

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A fence in the fog near the proposed new route for the Keystone XL pipeline several miles north of Neligh, Neb. on Thursday, April 19, 2012. (AP Photo/Nati Harnik)
A fence in the fog near the proposed new route for the Keystone XL pipeline several miles north of Neligh, Neb. on Thursday, April 19, 2012. (AP Photo/Nati Harnik)

LINCOLN, Neb. (AP) — The developer of the Keystone XL pipeline said Monday that its proposed route through Nebraska is still legally valid until a higher court decides whether the state's pipeline siting law is constitutional.

A spokesman for Calgary-based TransCanada said last week's ruling to invalidate the proposed route cannot be enforced while a lawsuit filed by landowners is on appeal. The case is expected to end up in the Nebraska Supreme Court.

Company officials said the ruling shouldn't affect the ongoing federal review. TransCanada is not a party to the lawsuit between landowners and the state, but has followed the case because of its potential impact on the Canada-to-Texas pipeline.

"We have dealt with many issues related to this project in the past and we are confident we can overcome this latest hurdle," James Millar, a TransCanada spokesman, said in a statement. "It is our view that the current 90-day (federal review) process that is now under way should not be impacted by the Nebraska lower court ruling since the approved re-route remains valid during appeal."

The route was approved by Republican Gov. Dave Heineman after an evaluation by the state Department of Environmental Quality. In their lawsuit, three landowners argued that the law, which allowed Heineman to approve the route, violated the state constitution because it took power away from the Nebraska Public Service Commission. The Nebraska attorney general's office is appealing the district court decision.

Pipeline opponents disputed the company's argument.

"Attorney General (Jon) Bruning and TransCanada may not like the fact that they have no legal route in Nebraska and no power of eminent domain, but their latest move is a slap in the face to landowners, citizens and our state constitution," said Jane Kleeb, executive director of the anti-pipeline group Bold Nebraska.

David Domina, an attorney for the landowners, said state officials are bound to abide by the court's decision unless it is altered by the Nebraska Supreme Court.

If TransCanada were to start moving forward with the project while the case is pending, "it will find itself in an abrupt halt at the starting gate," Domina said. "A display of such corporate hubris would not go over well with the Nebraska judiciary."

President Barack Obama told a gathering of governors on Monday that he planned to make a decision on the pipeline soon, Heineman said. Heineman, who attended the National Governors Association meeting in Washington, said Obama told a gathering of about 40 governors that he would make a decision on the pipeline in "the next couple of months," but didn't offer a specific timetable. The comment from Heineman came in response to a question at the closed-door meeting.

"I'm pleased that we're finally going to get to a decision," Heineman said. "This is very significant. It's been at least a year since I sent my approval to the president for our particular route (through Nebraska), and it's taken even longer than that on the federal level."

Kleeb pointed to Obama's initial denial of the project in 2012, due in part to uncertainties at the time about the Keystone XL's impact on Nebraska.

"Since we have no route in Nebraska, we take the president's word of a decision coming within months as a very good sign," she said. The president "has enough information to reject the pipeline and protect our land, water and property rights."

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