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Landowners Rally to Prevent TransCanada Lawsuit from Flatlining

David Domina at landowner rally

The courtroom was packed – standing room only. The occasion? An hour-long oral argument over LB 1161, the law that allowed Governor Dave Heineman to bypass the Public Service Commission and approve the route of TransCanada’s Keystone XL pipeline.

Since TransCanada recently decided to apply for a route permit with the Nebraska Public Service Commission, they contend that the lawsuit challenging the constitutionality of the 2012 law is a moot point. Nebraskans beg to differ.

Attorney Dave Domina who is representing the landowners believes that TransCanada’s attempt to dismiss the suit could be a ploy to keep their options open, in case the Public Service Commission denies their application. Theoretically, if Judge Mark Kozisek dismisses the landowners’ lawsuit, TransCanada could potentially file another application with the new governor, Pete Ricketts, who vehemently supports the project.

“There is no mootness here,” said Domina. “This issue could not be more alive and well.”

Kozisek heard the oral arguments on Monday, but has not yet issued a ruling. The case will go to trial sometime in December, unless Kozisek decides to side with TransCanada before then, which would mean dismissing the lawsuit.

TransCanada still has another large hoop to jump through, even if the lawsuit is dismissed. That is, the pipeline still needs presidential approval since it crosses an international boundary. TransCanada filed the permit application for the project more than seven years ago, and the White House has given no indication as to when the public can expect a decision.

Monday’s Holt County Court hearing wasn’t Nebraska landowners’ first attempt to challenge the constitutionality of the 2012 law that allowed Governor Dave Heineman to approve Keystone XL’s route. The landowners, represented by attorneys at Domina Law Group, previously filed a suit that made it to the Nebraska Supreme Court, but then stalled.

Nebraska’s Constitution requires five votes in order to strike down a state law as unconstitutional. Four of the justices agreed, but three refused to vote, making a change to the constitution impossible. Landowners countered by filing two new lawsuits in an attempt to stop TransCanada KXL.

Although TransCanada has seemingly switched strategies, canceling the eminent domain claims it had filed against Nebraska landowners, Attorney Dave Domina still maintains that the issue isn’t moot. There is a broader public interest at stake here, and that is, should the governor ever have the authority to decide and approve pipeline routes? We think not.

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