POLITICS
01/12/2015 04:46 pm ET Updated Jan 12, 2015

Keystone Opponents Vow The Fight's Not Over In Nebraska

WASHINGTON -- Now that the Nebraska Supreme Court has reached a split decision on the Keystone XL pipeline, both sides are girding for the next battles.

Pipeline opponents are vowing that it's not over, not even in the Nebraska courts.

Three landowners in Nebraska had challenged the governor's authority to sign off on the pipeline's route through their state, as the prior incumbent had done in 2013. The plaintiffs argued that a state law granting the governor such power was unconstitutional. In the Nebraska Supreme Court's ruling on Friday, four of the seven judges agreed that the plaintiffs had standing to challenge the law, and those four judges also held that the statute was unconstitutional.

But the three other judges found that the plaintiffs lacked standing to bring the case before them, as the pipeline route has been modified since the original filing and now only one of the landowners lives along the route. Those three judges did not weigh in on the question of constitutionality.

Under Nebraska law, a supermajority of five judges was needed to throw out the statute -- which means that even though the majority voted against the law, the court's ruling allows the pipeline route to go forward as previously approved.

"We lost on a technicality," Jane Kleeb, director of Bold Nebraska, a group that opposes the pipeline, told The Huffington Post shortly after Friday's decision.

Brian Jorde of Domina Law Group, who represented the landowners, said in a call with reporters that the way the decision came down leaves the door open to future challenges, potentially from other landowners or at a later stage in the Keystone construction process. "In this case, there's clearly another case that can be brought and force a decision to break this loose," said Jorde.

On Monday, Domina Law Group also posted a video online in which the lawyers argue that the case isn't necessarily over. "This decision has simply been pushed down the road or punted away to be answered on another day in the future," Jorde said in the video.

The lawyers indicated that they are prepared to file another challenge if TransCanada proceeds on the route as it was approved under the 2012 law. That statute gave the governor the authority to OK both the pipeline and the use of eminent domain to access land along the pipeline route, and then-Gov. Dave Heineman (R) signed off on the route in 2013. The plaintiffs' attorneys argued, in court and in the video, that the decision should have been left to the state's Public Service Commission.

"TransCanada has to decide: Does it proceed under a statute that is almost certainly unconstitutional, or does it go to our Public Service Commission and honor our constitution?" said lawyer David Domina in the video. "I don't know which TransCanada will do, but if it chooses the route that we think is unconstitutional, the property owners of this state and we as their lawyers are prepared to meet TransCanada."

The company praised the court decision Friday and also indicated that it's prepared to fend off further efforts to stop its pipeline.

"The issues in Nebraska should be behind us, and we believe we can get on with an approval in a very short time frame," said Russ Girling, TransCanada’s president and CEO, in a call with reporters Friday.

Girling said he expected that opponents of the project "will continue to find ways to delay and thwart" the pipeline. "They'll continue to file lawsuits," he said, adding, "We believe we'll continue to win those battles in court."

The U.S. State Department said previously that it would give federal agencies at least 14 more days to comment on Keystone XL after Nebraska's decision before reviewing those comments and rendering its own decision on the pipeline. Meanwhile, the House on Friday passed a bill that would force approval of the pipeline; the Senate has scheduled a procedural vote on its own legislation for Monday evening. The White House has said it will veto that legislation in order to let the executive decision-making process play out.

Opponents in Nebraska are hoping that the Obama administration will reject the pipeline outright, ending the legal debates. "This has been tremendously upsetting for landowners in this process," said Randy Thompson, the lead plaintiff in the Nebraska Supreme Court case. "It's time for the president to put an end to this damn thing and let us get back to our lives, get back to raising food for America."

TransCanada has also vowed to keep fighting to build pipeline infrastructure across the United States even if the Obama administration rejects this application. "In the event of a negative decision, that need doesn’t go away. ... We need a pipeline in place between these two locations," said Girling. "As long as the need is in place, we're a market-driven company -- we will continue to press for that."

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