Keystone XL

Nebraska Supreme Court Clears Way for Keystone XL Pipeline


Keystone Map

The Nebraska Supreme Court issued a decision today in the case Thompson v. Heineman that allows the governor to approve the construction of the Keystone XL pipeline through the state. The state legislature removed jurisdiction over the pipeline from Nebraska's Public Service Commission and gave decisionmaking power to the governor. Landowners who oppose the pipeline sued arguing that the legislature had violated the state's constitution. As it happens, four out Nebraska's Supreme Court justices agree with the landowners, but the same constitution requires a supermajority vote of five justices to declare any state legislation unconstitutional. The bottom line is that the governor has the power to approve the right-of-way and the contruction of the pipeline.

Nebraska Gov. Dave Heineman (R) approved the pipeine in January 2013. Once operational, the pipeline would transport daily more than 800,000 barrels of crude derived from Canadian oilsands to Gulf Coast refineries.

Today the House of Representatives passed a bill approving construction of the pipeline by a vote of 266-153, with 28 Democrats joining nearly all Republicans in favor. The Senate is expected to pass the bill next week.

Earlier this week, President Obama's press secretary Josh Earnest cited the pending court case as a reason for the president to veto Congressional legislation approving the pipeline. That objection no longer applies.

For those interested in how the power of eminent domain came to be exercised on behalf of common carriers like railroads, power lines, and pipelines, see Charles Burdick's "The Origin of the Peculiar Duties of Public Service Companies" in the June, 1911 issue of the Columbia Law Journal.

Disclosure: Back in 2011, I went on a junket to report on the development of Alberta oil sands. My travel expenses were covered by the American Petroleum Institute. The API did not ask for nor did it have any editorial control over my reporting of this trip or, for that matter, any other reporting that I do. For more background, see my articles, "The Man-Made Miracle of Oil from Sand," and "Conflict Oil or Canadian Oil?"

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  1. Disclosure: I drove a gasoline powered car today. I’m hopelessly compromised by Big Oil.

    1. Why don’t you just tell the truth that your car is powered by the blood of the innocent. You monster.

      1. Given the rarity of innocents, that must be an awfully expensive ride.

        1. You can use baby seal and polar bear blood as an alternative fuel.

          1. Have you ever truly looked into the eyes of a baby seal? Innocent my ass.

            1. Dont think for a second they wouldn’t club you to death if you gave them the chance. And the thumbs.

              1. Try sea lions. Those guys are big and vicious.

    2. My car is fueled by small earthquakes in places I don’t live.

      As God intended.

      1. That’s for the hoi polloi, my ride is powered by the light provided by the psychic and life energies of 10,000 sacrificial psykers.

  2. That is 21 votes short of what is needed to override the veto. So it looks like the Democrats are going to continue to tell the large majority of the country to go fuck themselves, they have to support the first black President.

  3. “Earlier this week, President Obama’s press secretary Josh Earnest cited the pending court case as a reason for the president to veto Congressional legislation approving the pipeline. That objection no longer applies.”

    Odds on a Veto, regardless?

    former colleagues of mine bet ‘no veto, but will make a stink’; I think yes, veto. By the ‘Why do dogs lick their balls‘-rule of politics.

    I also think oil prices make it easy.

    Back when ‘energy security’ was the talk of the town, blocking the project would have been unthinkable. ‘Drill baby drill’. Now, opposition to oil projects is armwrestling a cripple. Production is being cut all over the place. he can stall it another year or two and keep it alive as something to make republicans perpetually look like they’re in the pocket of BIG OIL. Its just a convenient wedge-issue for the greentards.

    1. Obama cares about the important things like how many cushy do nothing high paying board positions and speaking gigs he is going to get from greentard billionaires once he leaves office. What does he care about what a bunch of typical white people think or want?

    2. opposition to oil projects is armwrestling a cripple.

      I don’t think so. Americans still want economic growth and it still isn’t being delivered. Maryland is opening up to fracking.

      1. “Americans still want economic growth”


        *yes that’s dicaprio riding shotgun behind the indians

        **and if there’s any pleasure to be gleaned, its how the SJW-trolls will attack people who support them for using their White Privilege and stuff

  4. Again with Bailey’s trip to the Alberta oil sands. Going to Canada is nothing to brag about.

    1. “Going to Canada is nothing to brag about.”

      I have a girlfriend who lives in canada. You wouldn’t know her.

    2. The crafters of War Plan Red beg to differ.

      1. I have begged to be called from the Retired Reserve and given a unit tasked with seizing either Tim Horton’s locations or poutine places…

    3. And in all seriousness, every place I’ve been to in Canada is awesome.

        1. Montreal, Quebec, Ottawa, Algonquin, Calgary, and Banff. My God, Banff. I would gladly wash dishes for the rest of my life and pay an 80% tax rate to support socialized medicine if I could live in Banff.

          1. I’ve always wanted to do the Canadian rockies. My last gasp attempt was placing a deposit on a 8 day trip in 2007 where we were going to be dropped by helicopter above the treeline and hike a ridge w/ crampons, sleep in snowcaves, etc. My @#*(@&$ buddy cancelled on me after i’d spent a few hundred bucks on equipment. He paid me back for everything; but it was the second time he’d done the same thing basically.

            1. I had never been in the Rockies before. It was life changing. I’d definitely recommend it, even an easier trip. We did a week-long backpack with no technical aspects, still extremely rewarding.

        2. And Stan Rogers was from Hamilton, so it can’t be that bad.

      1. Both of them? They are pretty great.

        no, but really = try buying beer in Vancouver after midnight. I had to go to a Chinese restaurant and use the ‘secret word’, and they sold me a six-pack of Tzingtao in a paper bag that looked like i’d ordered take-out. I felt like i was in junior high again.

        I canoed across part of ontario (about 400+ miles) when i was 16. I got hypothermia. I learned that shallow lakes have leeches. I saw a moose dying from some kind of horrible flesh-eating disease. Zombie moose. You could smell it 4 miles away. Nice country.

        1. You joke but moose with brain parasites will fuck you up. Booze laws in Ontario are stupid too. Country’s gorgeous when it’s not trying to kill you or keep you sober.

          1. Our guide repeatedly warned us = bears will run away, moose will kill you without warning. They’re crazy territorial, and think everybody is trying to fuck their girlfriend or something. He had a .45-70 lever gun which he said would maybe ‘slow them down’, at best.

            1. Moose are really sonsofbitches when they get hit by cars too. Their skinny legs snap and their whole body just rolls over the top of a car. Saw the aftermath of car accident with a moose when I was a teenager, entire hood was basically flattened.

              1. I believe that Mythbusters episode was titled, “Moose Mayhem”

        2. moose dying from some kind of horrible flesh-eating disease. Zombie moose.

          I have never heard of this. Are you sure it wasn’t an elk dying of CWD? That shouldn’t smell anyway.

          1. I was joking about the “flesh eating disease”. It was “dying”.

            As it died (of whatever the fuck it was dying from) flies were landing on it and laying eggs, such that its body was covered in maggots and chunks of it were falling off. you could see its ribs.

            it would stay near the water and crawl in with just its nose and antlers poking out, which our guide later theorized was probably a way to ‘make it hurt less’, or maybe just die faster.

            When we came paddling by, zombie-moose came out of the water, made a sound sort of like this, I simultaneously puked and shit myself, and the guide started expertly doing ‘backwards canoeing’. as noted, we could still smell it hours later.

            it was more horrible than you can possibly imagine.

          2. Even if CWD doesn’t directly cause the smell, wouldn’t an animal at the end stage of the infection be so fucked up that the skin couldn’t heal itself, giving rise to opportunistic infections and infestations?

  5. I’m guessing a pocket veto by President Links.

  6. What the hell kind of map projection makes Wyoming and Colorado look like that? Fucking Common Core.

    1. Thick red stripes have a ‘slimming’ effect. They can take hundreds of miles off your waistline.

    2. Drunk Reverse Mercator.

    3. Check your hemispheric privilege:


      1. Australia Uber Alles, oy oy oy!

  7. Just a big victory for the power of eminent domain, further extending it to a foreign company, and roundly applauded by the GOP. Big government is A-OK, if its our big government.

    1. The eminent domain issues are shitty. If Obama took a principled stand over eminent domain, I’d support him, though from a federalist point of view, I’m not sure that it’s within his job description to do so.

    2. No, its not. The only reason ED has to be used is because the public approval process prevents the pipeline builders from having any sort of a fair negotiating position with land owners.

      Beyond that, the Left love eminent domain and has for years in every other context. For them to know claim Keystone is bad because of eminent domain is complete insult to people’s intelligence. \

      At least be honest and admit you want people to be poor and energy to be as expensive as possible. That is an idiotic and evil position, but at least it is an honest one.

      1. You’re exactly the type of person I would have been referring to…ED is a real problem until you can use it to get what you want, in this case oil.

        Yeah, it had to be used because its is going through land that US citizens own, and they don’t want it to. Who cares what the left says, you either like ED or you don’t…you like it.

        1. You are an idiot. If they didn’t have to announce their plans in advance and subject each and every change to a long public approval process, they wouldn’t need ED. If a land owner does not want to sell, they just reroute the pipeline to go across his neighbor’s land. Thanks to the publc approval laws, they can’t do that. If a land owner says No, it is virtually impossible to route around them. So the very process you support creates the need for ED.

          And to hear someone of your ild wax poetic about American citizens’ property is the funniest thing I have seen in a long time. Your entire political ideology is dedicated to robbing those American citiznes of their property. If the Feds decided to make their lands into a national monument and thus virtually worthless, you would think it was great and be cheering on the bulldozers as they went through the houses. But now you care so much about property rights.

          Post that shit elsewhere. We are all full up on “I think everyone is so stupid they will believe anything I say no matter how much it is at odds with everything else I say”.

          1. Like I said, welcome to the big government gravy train.

            1. No. If we had a small government, the thing would have been built a long time ago, sans public approval, sand ED and at whatever price the landowners and builders agreed.

              Your world view is so twisted, you actually think people getting out from under the idiotic restrictions you want placed on them amounts to a “gravy train”.

          2. John, this isn’t something I’m expert on. Why is it so hard to reroute now? Couldn’t they put feelers out to land owners before they officially draw up a route.

            1. You have to propose the route to the regulators and negotiate the route with them. The regulators approve the route. So, you can’t just put feelers out and route through who is most willing to sell.

              Beyond that, even if you did, once the route is approved, the landowners then have all of the power.

            2. And while routing around holdout landowners seems easy, that’s four additional turns and each set of turns and the additional pipline footage costs money. My guess is they need to keep to the straightest line possible to keep costs down.

          3. By the way, that approval process is there to protect the individual. TransCanada knows darn well it won’t be able to make all the shifts and turns necessary if it depended on individual approval, so what did it do? Fell on the shoulders of big government…in fact, agreed with the law that allowed the Governor himself to decide, negating any approval process.

            4 of the 7 judges felt that was unconstitutional.

            But you don’t, because you like big government when it suits you.

            1. By the way, that approval process is there to protect the individual.

              No it is not. It is there to empower the bureaucrats. And Trans Canada didn’t ask for or create the process. The Greens created the process in order to make it hard to build these kinds of things. This is entirely a problem created by regulation.

              And again, you don’t care about property rights and therefore have no standing to object to the use of ED. Yo and the rest of the left would be happy to see this land confiscated by the government. So spare me the tears that they had to sell a right of way to a pipeline company.

              1. I’ll let one of the farmers who brought suit answer you John, because you just can’t get the blinders off:

                “It is just a ridiculous idea that a foreign corporation can have the power of eminent domain to start with?but then the idea that our legislature would grant them [that power]?to me that’s totally outrageous,” Randy Thompson, a landowner and lead plaintiff in the Nebraska case, said Friday. “I think that anyone who owns property in the United States should be outraged by that proposition. We need to address this, not only in Nebraska, but as a nation.”

                Count John out, Randy…he likes big government and ED.

            2. By the way, that approval process is there to protect the individual.

              Yeah, I don’t buy that for a second. The only protection the individual needs is respect for their property rights. If they say yes, build it. If they say no, sweeten the deal or GTFO. There, individual protected.

              1. They said no, and eminent domain trumped them. John just can’t get it straight.

      2. Let me put it this way…you either like big government or you don’t. You like it.

      3. Why don’t they just bury them under interstates and other highways? Problem solved.

        1. Great idea.

        2. Maybe. If something goes wrong and they have to dig up a section there goes your highway.

          Running them along existing railroad and highway ROWs sounds practical, but I suspect the enviros could easily whip the soccer moms into an hysterical frenzy with fears of an awful pipline spill engulfing their minivans in flames.

    3. I don’t believe any federal eminent domain is involved here. This is about the connection with Canada, not the appropriation of property inside the US.

      1. Come on, kbo, the whole thing in Nebraska hinged on ED.


        1. Wow, yeah I don’t know what I thought I was commenting on, but this ain’t it.

          Still, this court case looks more like a procedural battle between the Nebraska civil service and the governor; eminent domain wasn’t really on the table (as in, had the court ruled differently, eminent domain would still be available for this purpose).

          1. You are probably correct. There is no doubt there are questions about legal authority here between the governor and others. That article I cited even has some who want the pipeline, but want the law ruled as unconstitutional. There have been strange bed-fellows created here.

        2. Side note, the “supermajority to find a law unconstitutional” requirement seems exactly backwards to me. As in, if you can’t convince nearly all of the SC judges that your law is constitutional, then that should constitute sufficient doubt for it to be thrown out.

          At least the USSC has only a majority requirement.

          1. Yeah I’m not a huge fan of how the Nebraska court works or the shake out of this case.

            1. IMO it should be:

              A supermajority (66%) to amend the constitution;

              A majority (50%) to pass a law;

              A submajority (33%) to find a law unconstitutional.

              There’s a nice symmetry there.

              I’d also settle for Heinlein’s proposal of a bicameral legislature with one house for passing laws and the other for repealing them.

              1. I love Heinlein’s bicarmel set-up! It’s better than a parliamentary system, which itself looks better than America’s current set-up, which lacks a legislative reverse function.

          2. That was indeed strange. I think I read that one or two of the judges didn’t even take part, but they still needed 5 of 7.

            1. I cannot imagine that such a rule was not drafted out of spite.

          3. Side note, the “supermajority to find a law unconstitutional” requirement seems exactly backwards to me.

            Betting that it was originally created by social conservatives to prevent “judicial activism” against abortion laws.

            1. The provision does not appear in a 1913 version of the constitution (note that the articles appear to have been re-arranged; the judiciary is identified in Article VI of the 1913 constitution but Article V of the present constitution) and the constitution was last amended in 1990, so that is a distinct possibility.

  8. I am against all ED, but Keystone is separate from ED in the same way gay marriage is a separate issue from anti-discrimination coercion. It’s good that the House voted that way, but it still isn’t enough to override a veto. The Senate’s energy committee also passed something pro-Keystone but it was only 13-9 and only ONE (1) Democrat voted for it! The Dems have taken complete leave of reason and they will suffer for it. They are going to hand over vast swathes of the country to the GOP on this issue. Madness!

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