The planned Keystone XL pipeline extension hit a snag Wednesday when a Nebraska court invalidated a state law that helped pave the way for construction. Lancaster County judge Stephanie Stacy ruled that the law, which dealt with eminent domain authority in the state, violated Nebraska’s state constitution.
Legislative Bill 1161 [PDF], which Republican Gov. Bill Heineman signed into law nearly two years ago, empowered the governor to delegate eminent domain authority to TransCanada, the company which owns the pipeline. When TransCanada tried to use that law to initiate eminent domain proceedings against some local landowners, those landowners argued in court that the governor had improperly delegated authority.
Stacy agreed, saying that eminent domain authority — the legal process for seizing privately owned land in cases of public necessity — rested not with the governor, but with the state’s Public Service Commission (PSC), which consists of five elected commissioners. The judge also said the law “unconstitutionally divests PSC of jurisdiction to regulate oil pipelines … and wrongfully vests control of such pipelines in the Governor.”
The state attorney general has already filed a notice of appeal.
“I’m pleased that Attorney General Bruning is appealing this decision,” said Gov. Heineman in a statement. “This is an important issue for the State of Nebraska.”
Vanderbilt University law professor Chris Serkin, an expert in eminent domain law, told msnbc that it is “relatively routine” for government officials to delegate eminent domain authority to private entities.
“One of the first widespread uses of eminent domain in this country was to build the railroad system,” he said. “And that is at least roughly analogous to the situation here. State governments and the federal government believed there was a need to create a comprehensive rail infrastructure, and by and large the railroad companies were private companies. Nevertheless, the government believed the existence of a comprehensive network, also privately owned, would benefit the country as a whole.”
But Serkin also found irony in the fact that it was a Republican state senator who had introduced LB1161, and a Republican governor who had signed it. Conservatives, he said, have been the group who have most vociferously fought to restrict eminent domain through the legal system.
“It is at least somewhat ironic, to generalize here, that it is by and large conservatives and the GOP that mostly favor the Keystone pipeline,” he said. “And they suddenly find themselves thwarted, at least in this case and maybe other cases, by the expansive protection of private property rights.”
Jane Kleeb, director of the progressive advocacy group Bold Nebraska, applauded the court ruling in a statement.
“Citizens won today. We beat a corrupt bill that Gov. Heineman and the Nebraska Legislature passed in order to pave the way for a foreign corporation to run roughshod over American landowners,” she said. “We look forward to the Public Service Commission giving due process to a route that TransCanada will have to now submit to this proper regulatory body in Nebraska. TransCanada learned a hard lesson today: never underestimate the power of family farmers and ranchers protecting their land and water.”
Ned Resnikoff
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog.