The corporation behind the Keystone XL pipeline has declared its controversial project canceled, but some who oppose it say their battle isn't yet history.
With uncertainty looming and eminent domain court fights ongoing, pipeline critics are calling for regulatory and legislative action in Nebraska.
TC Energy Corporation, formerly TransCanada, announced Wednesday it had terminated the pipeline project. It would have moved crude oil from Alberta to Steele City in Southeast Nebraska before connecting with an existing pipeline system that reaches the Gulf Coast. The company announced it was canceling its project after President Joe Biden revoked a necessary permit in January.
The project had been the subject of dispute for more than a decade and attracted vocal opposition from critics, including environmental activists, landowners and Native tribes. Its cancellation prompted celebration on that side of the fight, but disappointment from project supporters, including Nebraska Gov. Pete Ricketts. In a statement, he directed criticism at Biden's action, said the U.S. would be more dependent on overseas oil sources, and lamented the loss of potential jobs and property tax revenue.
In a press call hosted by a campaign called "Stop Trump Pipelines" on Friday, Bill McKibben, who founded the environmental advocacy organization 350.org, called the decade-long tug-of-war over Keystone XL “one of the signal environmental battles in all of American history."
Still, environmental advocates and others say the work is far from over. Jane Kleeb, founder of leading opposition group Bold Nebraska, is calling for further action in at least three areas: the state Public Service Commission, courts and the Legislature.
The commission, which is made up of five elected commissioners and regulates telecommunications carriers, railroad safety, major oil pipelines and more, approved the pipeline's route in 2017. The Nebraska Supreme Court ultimately affirmed that approval. That allowed TC Energy to exercise the power of eminent domain, and now advocates want the commission to revoke the approval.
There are still more than 60 cases in court with landowners across nine counties fighting TC Energy over eminent domain, according to Brian Jorde, a lawyer representing landowners.
The commission can’t simply rescind its approval on its own, according to commission spokesperson Deb Collins.
“The commission does not have the authority to unilaterally act in regard to a final order that was subsequently subject to appellate review and affirmed by the Nebraska Supreme Court,” Collins wrote in an email.
It hasn’t received any “filings, submissions, or requests” regarding the Keystone route from a party in the case, she wrote.
Kleeb, who also chairs the Nebraska Democratic Party, said lawyers for Bold Nebraska and the Ponca Tribe, both of which are parties, are sending a letter Monday requesting the commission open the docket.
“We will continue to monitor the situation in light of the June 9 statement from TC Energy,” Collins wrote.
If the commission ultimately rescinds approval of the route, Jorde said, the dozens of cases he's involved in should be vacated. But, because the lawsuits were validly filed at the time, Jorde said a judge still has to decide how it affects land ownership in each case.
Both Kleeb and Jorde independently said the danger is that TC Energy — if it stays true to its word that it won’t build the pipeline — sells its easements to another entity.
Jorde said he’s meeting with TC Energy lawyers soon to talk about what happens next.
In an emailed response to voicemails from the Omaha World-Herald, TC Energy media relations wrote the company doesn't comment on "matters before the courts."
"As we exit the project, our first priority is to make sure we wind down construction activities safely and with care for the environment," the statement reads.
Kleeb and Jorde would also like to see state law tweaked so that if a pipeline doesn’t have the necessary permits — such as the permit Biden revoked — any land easements a pipeline company acquired would automatically be returned to the landowner.
Their argument: A company should not have the power of eminent domain if it cannot do the project for which that power was granted.
“I’m not going to rest until we have stronger eminent domain laws and stronger pipeline laws in our state, because I don’t want other families to go through what everybody just went through with Keystone XL,” Kleeb said.
She said there’s no bill being drafted yet, but she's identified a few potential sponsors for legislation.
Sens. Adam Morfeld and Eliot Bostar, both of Lincoln, signed a letter last month in part asking the Public Service Commission to explain why it hadn't reopened the matter to alter or rescind its approval after Biden's action.
Morfeld said Friday he'd be supportive of legislation that makes it so a private company can't exercise eminent domain when a pipeline route has been rejected or not approved, but he'd have to read the actual legislation to know whether he'd be want to take the lead on it.
"To me, that's common sense," Morfeld said. "Common sense protection of land rights."