On September 25, Domina Law Group filed the written Rebuttal Closing Argument
on behalf of Nebraska Landowners who oppose the TransCanada Keystone XL Pipeline.
Citing a 10-day old Nebraska Supreme Court decision, the Landowners told
the PSC that the pipeline company cannot prove its case merely by presenting
its Application for a route across the State.
entire Rebuttal Closing Argument provides the details. We urge you to read it.
Lawyers Dave Domina and Brian Jorde of Omaha argued for the Landowners:
There must be more than: a) the Application and b) a TransCanada witness
saying, “Yes, this or that part of the Application is true”
for an Application for a Government permit or license to prevail.
Stressing that TransCanada must prove its claims with evidence, the Landowners observed:
The burden of proof is at the center of every decision in a contested case.
The question … is not “How would I like this to come out?”
It is: “Was the burden of proof sustained by the party who bears
it?” Proof has no surrogate. Not wistful thinking, not political
preference, not popular prevarication, and not naked assertions.
The landowners cited TransCanada’s witnesses against the Company’s position.
Their lawyers quoted an admission that TransCanada’s senior witness
admitted the pipeline will not be removed, but will be left for cleanup
by future Nebraskans.
Domina and Jorde attacked the pipeline company’s economist quoting
his statement that Christmas shopping causes Christmas.
The lawyers pointed out, again by quoting KXL’s pipeline engineer,
that South Dakota did not require the route to come into Nebraska on a
new path. TransCanada has claimed it must enter Nebraska from a “fixed
point” in South Dakota.
Domina and Jorde argued that the precise language of South Dakota’s
decision to allow the pipeline to be built was precisely contrary to the
Company’s claim of a “fixed entry point”.
Landowners oppose the pipeline altogether. But they also argue that if
one is to be built, it should closely parallel the existing line across
Nebraska and not disrupt highly erodible sandy soils, cross the Ogallala
Aquifer and five major rivers, or intersect migratory bird pathways.
The Canadian company has pipeline across Nebraska now. It runs from Cedar
County in Northeast southward to the Steele City NE on the Kansas border.
The Landowners and TransCanada agree that this path crosses heavier soils
and is a more intelligent location. This route was used without serious
objections when built several years ago.