LINCOLN, Neb. (AP) — Nebraska’s sovereign immunity would protect the state from costly lawsuits if officials diverted a crude oil pipeline away from the ecologically sensitive Sandhills, a leading project opponent said Monday.Alan Peterson, an attorney for the Sierra Club’s Nebraska Chapter, told lawmakers that even if the state waived its immunity to a lawsuit and lost, pipeline developers could not likely recover more than the cost of right-of-way easements obtained from landowners after their project received federal approval.
Peterson made his statements to the Legislature’s Natural Resources Committee during the first day of special session hearings aimed at major oil pipelines, such as the Keystone XL. His comments were in reference to a bill, LB 1, by Fullerton Sen. Annette Dubas, that would give Nebraska’s Public Service Commission authority over pipeline routes.
Gov. Dave Heineman called the special session amid concerns over the Keystone XL, a 1,700-mile line that would carry Canadian crude oil from Canada to Texas Gulf Coast refineries. The Nebraska leg of the route cuts through the ecologically sensitive Nebraska Sandhills and the Ogallala aquifer, an underground water supply that lies beneath eight states.
Supporters say it’s too late for Nebraska to assert routing authority and that any attempts to move it will trigger an expensive lawsuit that the state would likely lose.
“Only if they proved that they spent money on easements after they had the federal permit, and then the law was found unconstitutional” could companies sue for damages, Peterson said. “And that would be limited to getting those easements back.”
Lawmakers who want state routing authority over major oil lines, such as the Keystone XL, are walking a fine legal line. Federal law supersedes state power on pipeline safety, so any law that would allow officials to move the route must be grounded in some other state interest.
Ogallala Sen. Ken Schiltz, who has supported the pipeline, noted that the state would still incur some legal costs even if Nebraska prevailed in a lawsuit.
Dubas pitched her bill to the panel as a constitutionally sound proposal that would give the commission authority, with input from Nebraskans and other state agencies.
Pipeline developers would still have “a full and fair opportunity to present their case on the economic development aspects, job creation and energy enhancement goals,” Dubas said.
Pipeline supporters have said Nebraska lawmakers should have enacted siting legislation sooner, before the Keystone XL project was so far along in its three-year federal review. A decision on Keystone XL could come by the year’s end, although hints have emerged that the Obama administration will delay its decision.
Dubas said earlier attempts to enact pipeline legislation were stonewalled by industry lobbyists.
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