After the joys of the holiday season, returning to routine can be a bit of a letdown — but not so this year for supporters of the Keystone XL pipeline, who received a slew of good news in the second week of January. The pipeline has taken several steps closer to fruition thanks to a newly Republican-controlled Congress and, perhaps more surprisingly, a quirk of the Nebraska Supreme Court’s constitutional procedure.
The Keystone XL pipeline, first proposed by energy company TransCanada in 2008, would transport crude oil from Canada and Montana down through the Midwest to Texas and the Gulf of Mexico. The U.S. Department of State has been reviewing the transnational pipeline for nearly seven years, and has maintained in recent years that its decision is delayed in part because of ongoing litigation in Nebraska state court over the regulation of pipeline carriers. In 2012, Nebraska’s governor signed into law a statute that enables “major oil pipeline” carriers to obtain approval from the state’s governor for a pipeline’s route across the state, rather than from the state’s Public Service Commission, the body that regulates common carriers. The governor approved TransCanada’s proposed route for the Keystone XL pipeline across Nebraska, empowering the company to exercise eminent domain to acquire the necessary land.
A group of Nebraska landowners responded by filing suit against Nebraska’s governor and other state officials, arguing that divesting the Commission of its regulatory authority was unconstitutional. The lower court agreed, and the defendants appealed to the Supreme Court of Nebraska. On appeal, the seven-person Nebraska Supreme Court affirmed in a 4-3 vote that the landowners had standing to bring the claim, and that the statute was unconstitutional. However, the Nebraska Constitution requires a supermajority of at least five votes for the state’s highest court to strike a law down as unconstitutional; a 4-3 vote is therefore considered a deadlock. Because the Nebraska Supreme Court did not reach a supermajority, not only is their decision not binding, but the lower court’s ruling is vacated and the legislation stands by default. Therefore, the Nebraska governor’s approval of TransCanada’s proposed route for Keystone XL also stands.
Meanwhile, the newly Republican-controlled U.S. House of Representatives passed a bill Friday that would approve the Keystone XL pipeline, putting an end to the Department of State’s review. The Senate is expected to vote on the bill this week. President Obama has indicated he intends to veto the legislation if and when it arrives at his desk. A veto would not be a fatal blow to the transnational pipeline, but it would mean the project is still subject to further, potentially years-long review by the State Department.