Thanks to a bizarre provision of their state Constitution, the minority ruled today at the Nebraska Supreme Court.
In a split decision by the state Supremes on Friday, the court vacated a lower state court ruling that had found the approval process for a new, revised route for the controversial Keystone XL pipeline to be in violation of the state constitution. Although a 4 to 3 majority of the court’s jurists found the law in question to be unconstitutional, a state requirement that constitutionality be determined by a super-majority means that the lower court ruling is struck down. The state legislation allowing the revised route “must stand by default,” according to the ruling [PDF].
The new decision clears the way for President Obama to offer final approval or rejection of the pipeline, which is set to ship dirty tar sands oil from Canada across the continental U.S. to the Gulf of Mexico for ultimate export overseas. The future for the pipeline, however, is still unclear.
The Nebraska Supreme Court did not approve the Keystone XL pipeline itself, but rather addressed whether an attempt to revise the pipeline’s route to avoid an environmentally-sensitive region in Nebraska was legal under the state’s constitution, Climate Progress reports.
Simply put, the Nebraska ruling narrowly focused on the question of process. Four of the seven state Supreme Court justices agreed with the lower court that state legislation allowing TransCanada, the foreign company behind the pipeline, the option to essentially select which state entity would approve its revised route, was unconstitutional.
But Nebraska’s state constitution requires questions of constitutionality to be decided by a super-majority of 5 votes. Therefore, even though a 4 to 3 majority of the justices agreed with the lower court ruling that the approval process for the revised route was unconstitutional, the approval is nonetheless allowed to stand on what is, essentially, a legal technicality.
The Nebraska Supreme Court ruling moves the fight back to Washington, DC, where Republicans (and some Democrats) have long pressured President Obama to approve the massive new pipeline, which critics regard as a serious threat to the environment, with impacts on groundwater supplies and global warming…
On Friday morning, prior to the ruling in Nebraska, House Republicans passed a new bill to fast-track federal approval of the pipeline — their 10th attempt to bypass the administration’s stated policy to allow established infrastructure approval processes to run their course. The White House once again repeated their vow to veto any such bill.
“Regardless of the Nebraska ruling today,” White House spokesman Eric Schultz said, “the House bill still conflicts with longstanding executive branch procedures regarding the authority of the President and prevents the thorough consideration of complex issues that could bear on U.S. national interests.”
He added: “If presented to the president, he will veto the bill.”
A similar fast-track bill faces stronger Democratic opposition in the new Republican-controlled U.S. Senate, where the matter could be taken up as early as Monday. On Thursday in a committee hearing, Sen. Elizabeth Warren (D-MA) launched a scathing rebuttal against the Republicans’ attempt to force through the controversial pipeline project, asking “Who does this new Republican Congress work for? Foreign oil companies or the American people?”:
Opponents of the Keystone XL pipeline — environmental groups as well as landowners, ranchers and Native American tribes whose lands would be directly affected by the project — say they will continue to pressure President Obama to reject a cross-border permit for the proposed pipeline project from Canada. “It’s time for the president to put an end to this damn thing and let us get back to our lives and raising food for America,” said Nebraska rancher Randy Thompson, one of the plaintiffs in the court case, in a statement to Business Week following today’s court ruling. Opponents of the pipeline have left open the possibility of mounting further legal challenges.
With the Nebraska court case resolved — at least for now — the U.S. State Department will resume its review of the project to determine whether to recommend to the President if it is in the “national interest.” The final decision rests with President Obama, based in part on the State Department’s recommendation.
Obama has stated on numerous occasions he would reject the pipeline if it is not determined to be in the nation’s interest, and has bluntly countered myths proffered by supporters: “Understand what this project is: It is providing the ability of Canada to pump their oil, send it through our land down to the Gulf where it will be sold everywhere else,” Obama explained on a recent trip to Myanmar. On numerous occasions, Obama has said he will also consider the potential global warming impacts that would be exacerbated by the pipeline, promising to reject the project if it “significantly contributes to emissions that cause climate change.”
Desi Doyen is the co-host and managing editor of The BRAD BLOG’s Green News Report, the producer of KPFK’s The BradCast and an occasional guest host on The Young Turks. Follow her on Twitter at: @GreenNewsReport.
Very informative post Des.
What a strange rule for a court (2/3 majority).
Maybe I misread something that was published elsewhere, but at leas one of the three judges who ruled against the plaintiffs did so because they lacked standing. None of the plaintiffs would have been affected by the decision, so if plaintiffs can be found that will directly be affected by foreign company eminent domain seizures, then maybe the case can be re-litigated.
Also, it is my understanding that since no work was done in South Dakota on the pipeline in the last four years since approval was given, the route has to be re-approved.
John, you are correct that 3 of the justices found the property owners who fought having their land taken by TransCanada didn’t have “standing” — but 4 of the justices found they did have standing.
It’s counter-intuitive on its face to say that a landowner whose private property is being taken by a foreign company for private gain lacks ‘standing’.
But some of the plaintiffs whose land was not directly on the route joined the suit on the basis that the new process was an illegal use of state taxpayer money.
TransCanada will likely begin eminent domain proceedings against those hold-out landowners on the route within a few days, which opens up the opportunity for new lawsuits.