A crucial piece of the Keystone XL pipeline puzzle could fall into place as soon as Friday, with a Nebraska court set to deliver a long-awaited ruling on whether the project’s proposed route through the state is legal.
The highly anticipated decision won’t seal the fate of the oil sands pipeline one way or the other, but it will signal whether years of additional delays are on the horizon or whether President Obama finally will be forced to give the definitive “yes” or “no” to the project.
The case centers on whether Gov. Dave Heineman, a Republican, and the nonpartisan Nebraska Legislature exceeded their authority by changing state law to expedite Keystone
The White House has cited the case as one of the key factors why Mr. Obama has put off an approval or rejection of the pipeline for the past six years. The president must sign off on the project because it crosses the U.S.-Canada border, and Congress is looking to force his hand.
Legislation approving Keystone has bipartisan support and could end up on the president’s desk within days or weeks, though the White House has threatened to veto it.
Administration officials say the outstanding court case in Nebraska is one reason why the president would veto the bill.
By threatening a veto, Mr. Obama is needlessly stalling, some analysts say, as the outcome of the Nebraska case has little to do with federal approval of the project.
“It’s the latest in a long line of excuses. If the federal government said we can’t make a decision on anything because some private group has brought a single lawsuit in one of the 50 states, we’d never get anything done,” said Brigham McCown, former administrator of the federal Pipeline and Hazardous Materials Safety Administration. “This is a convenient excuse to continue to kick the can down the road.”
Indeed, there is no legal reason why Mr. Obama could not make a final decision on Keystone even without a ruling from the Nebraska court.
But the White House is correct in arguing that, until the court renders its decision, doubt remains on what route Keystone would take through the Cornhusker state.
“There continues to be an outstanding question about the route of the pipeline through one part of Nebraska, and that’s related to an ongoing legal matter in Nebraska,” White House press secretary Josh Earnest told reporters Tuesday, explaining why Mr. Obama would veto the federal legislation deeming Keystone approved.
The White House followed up Wednesday with a formal veto threat in writing.
“Once [the Nebraska case] is resolved, that should speed the completion of the evaluation of that project,” Mr. Earnest said.
The Nebraska case can be traced back to 2011, when the Legislature gave Mr. Heineman, a Keystone supporter, sole authority to grant eminent domain rights to TransCanada, the company proposing to build the pipeline.
Prior to that, all pipeline approval processes and subsequent eminent domain issues ran through the Nebraska Public Service Commission.
After Keystone opponents and landowners along the proposed route filed legal challenges, a Nebraska judge last year ruled that the governor and state lawmakers overstepped their bounds and that the issue should have been left in the hands of the public service commission. The judge’s decision essentially nullified Keystone’s route through the state.
Mr. Heineman’s administration appealed the ruling, and the case ultimately found its way to the state Supreme Court, which could give its ruling at any time.
This session, the court typically has released decisions on Fridays.
If the high court upholds the 2014 ruling, the Keystone approval process would begin again, this time running through the Nebraska Public Service Commission. That process likely would take at least a few months, state officials have said, possibly up to a year.
In addition, Mr. Obama’s State Department could decide to undertake new environmental reviews of the project, adding months or even years to the process.
In a review of the existing proposal, the State Department found that Keystone would not increase U.S. greenhouse gas emissions significantly and would create more than 40,000 jobs.
• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.
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