Ready to break ground? Not quite. Coverage continues on the temporary injunction that's preventing TransCanada from invoking eminent domain and laying the pipeline on Nebraskan's property.
Last Thursday, a Nebraska judge ordered a temporary injunction against TransCanada that would halt the Canadian oil giant from breaking ground on its Keystone XL pipeline until Nebraska lawsuits reach a conclusion. As it stands, Nebraska is the only remaining state with landowner "holdouts" – those landowners who have refused to sign easement agreements to permit KXL to run through their property.
TransCanada attempted to begin eminent domain proceedings when last month, the Nebraska high court refused to vote conclusively on the constitutionality of LB 1161. Those proceedings are now on hold, at least until these new, dual lawsuits filed by Domina Law Group on behalf of the landowners come to a close.
Not only does the injunction buy landowners some time and frustrate TransCanada's efforts, it will likely force the Nebraska Supreme Court to rule on the constitutionality of the route – or more precisely how that route was approved. The former lawsuit, also filed by Domina Law Group, challenged the constitutionality of LB 1161, the law the allowed Governor Dave Heineman to bypass the Public Service Commission and approve the route of KXL.
Out of the seven Nebraska Supreme Court justices, three of them sat the decision out. When it comes to decisions of constitutionality, five affirmative votes are needed to pass. Because three of the judges sat the decision out, there were not enough justices to overturn LB 1161 as unconstitutional. The remaining four judges that did vote, sided with Domina Law Group and Nebraska landowners. The decision was essentially punted down the road until a later date. This injunction will likely press the issue.
Ultimately, the pipeline needs presidential approval because it crosses an international boundary – the Canadian border with the U.S. Last time President Obama delayed his pipeline decision, he cited the pending legal battles in Nebraska. Many think he's likely to do the same again.
Commenting on the case, Attorney Dave Domina said, "We intend to hold TransCanada's feet to a Nebraska fire."
For more on this story, read it as it appeared in The Globe and Mail.