On Wednesday, a Nebraska judge struck down a state law that would have allowed
The law in question, LB 1161, allows Nebraska Governor David Heineman and TransCanada to avoid regulators in siting a crucial portion of the pipeline.
Lancaster County District Judge Stephanie Stacy sided with three landowners who challenged the law, finding that regulatory power over industrial companies such as TransCanada must remain with agencies such as the Nebraska Public Service Commission, not the governor’s office.
The judge ruled that the law violated the state constitution, and she issued an injunction blocking the Governor’s office from taking any action on the Governor’s January 2013 approval of the Keystone XL Pipeline route, which would include allowing land to be acquired through eminent domain (Court Documents).
Nebraska's attorney general is appealing Judge Stacy's ruling.
While this judgment seems very local, it has national impact. Eminent domain is the power of the state to take private property for public use by a state or national government. However, it can be legislatively delegated by the state to municipalities, government subdivisions, or even private persons or corporations when they are authorized to exercise functions of public character, usually for health and safety (Wikipedia).
It is sometimes given to corporations. And it is debatable whether building the Keystone aides the health or safety of America, or even our general interest. President Obama has said that all decisions should take greenhouse gas emissions into account so it is definitely not settled (EcoNews).
In an email after the publication of this article, TransCanada said it has reached voluntary agreements to secure 100% of the private easements required for the pipeline in Montana and South Dakota. It has 76% of the easements required for the route in Nebraska, it said. In general, the company said it has had to use eminent domain with only 2% of landowners.
The Keystone XL pipeline is at the heart of this and many other energy and environmental debates. The pipeline will carry 830,000 barrels per day of bitumen product made from tar sand through a meter-wide pipeline from the Alberta fields to refineries on the Gulf Coast, mostly to be exported. The $2.3 billion southern segment from Cushing, Oklahoma to the Gulf Coast is almost complete. The bulk of the $7 billion 2,000-mile pipeline is being held up until President Obama either cedes to Canadian and business pressure or blocks the construction because of environmental and health concerns.
The Keystone pipeline route alternatives through the northern United States. Source: U.S. State... [+]
At the same time as last Wednesday’s ruling, President Obama, Canadian Prime Minister Harper and Mexican President Nieto were meeting in Toluca, Mexico. In response to Harper’s push for Keystone acceptance, the U.S. President seemed unconvinced, saying, “Keystone will proceed along the path that’s already been set for it” (The Globe and Mail).
TransCanada has used eminent domain on another part of the pipeline route (NYTimes). In a 2012 ruling, Texas Judge Bill
As usual, the political cauldron has been thoroughly churned during this President’s tenure. Eight years ago, President George Bush issued Executive Order 13406 which stated that the federal government must limit its use of taking private property for public use with just compensation for the purpose of benefiting the general public, wording mirrored in the U.S. Constitution. Bush’s Order 13406 limits the use of eminent domain so it may not be used for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken. While Bush’s Order applies only to the Feds, it certainly colors the same powers of the States and has an effect on the appellate courts.
It is probable that the issue will not be resolved until the President decides, once and for all, the fate of Keystone. It is important to note that a recent Harris Poll had 82% of Americans in favor of the Keystone XL Pipeline (Brigham McCown, Forbes). It is also important that the State Department’s environmental impact statement reported that Keystone XL would have “minimal impact on the environment”. In addition, an independent study by
But why would anyone not want the Keystone pipeline on their property? I mean TransCanada offered Crawford a whopping $7,000 to help complete its $10,000,000,000 project (OEN). Surely that was fair.
Maybe Crawford declined because there have been over 6,300 pipeline incidents since 2002. 154 people have died, 540 people have been injured and $4.7 billion in property damage has resulted (Pipeline and Hazardous Materials Safety Administration; Cornell University). The potential economic damage caused by the expected spills from the Keystone pipeline alone could outweigh the benefits of any jobs created by the project.
To be fair, the alternative methods of oil transport do not look promising either. The number of railroad accidents and spills from rail transport of crude oil has dramatically increased (Huffpost). I’m not sure we want increased tanker trucks on the road given the accident rates. TransCanada states that this pipeline is fabricated to more specifications and safety standards than any pipeline in history. And that may be the case.
According to TransCanada “the specifications for the steel used in the Gulf Coast Pipeline and Keystone XL are detailed in the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) 57 special conditions TransCanada voluntarily agreed to (PHMSA 57). These specifications ensure that Keystone goes above and beyond what the federal government requires. The Gulf Coast Pipeline and Keystone XL are legally required to use the highest quality carbon steel, most sophisticated leak detection system ever installed, remote controlled shut-off valves, 24-hour security and monitoring and more frequent inspections for any pipeline in the history of the United States.” The State Department’s own environmental impact statement report states that, “Incorporation of the 57 special conditions would result in a (pipeline) project that would have a degree of safety over any other typically constructed domestic oil pipeline system under current code (Oil&Gas Journal).”
So, if the amount of oil we use in America is going to increase, which is the nominal reason for the Keystone in the first place, where do we want it to come from and what transport mechanism do we want - ocean-going supertankers from other continents, pipelines, rail or truck from this continent?
In the end, the real debate should be – do we want more oil or less? How we get it here will be dangerous no matter what method we use.
