|Nebraska’s pipeline legislation has little room for error|
|Written by Wauneta Breeze|
|Tuesday, 22 November 2011 17:44|
By Charlie Litton
Nebraska News Service
When the first two weeks of the Nebraska Legislature’s special pipeline session drew to a close, it remained difficult to guess what the end result will be of all this bickering.
But common themes are beginning to emerge, and they might give us some insight on what to expect as the pipeline debate continues.
From the beginning, including Gov. Dave Heineman’s call on Oct. 25, lawmakers have been extraordinarily cautious about what to expect.
Boiled down to most basic terms, they all seemed to be saying: “We’ll try, but don’t get your hopes up.”
It would be easy to look at that sentiment with a cynical eye and suppose the special session is little more than political grandstanding for elected officials who are only thinking about getting re-elected.
In truth, Nebraska senators have a very thin margin of error if they enact a law that would stop, delay or reroute the Keystone XL project — TransCanada’s controversial 1,700-mile, 36-inch pipeline that proposes to pump oil through the Sandhills and the massive underlying water table on its way to Gulf Coast refineries.
The governor’s call was superficially vague, asking senators to look into legislation that related to oil pipelines. And to do so in a legally and constitutionally sound way. The problem for senators is they can’t enact a law specifically designed to stop TransCanada because the courts generally frown on laws that don’t apply to everyone equally.
So a law that says, in effect, “TransCanada Shall Not Pass,” would likely be deemed unconstitutional.
Of course, lawmakers could get around this by enacting a law that applies to all pipelines, which sounds simple enough. Only, the governor’s call was specific to legislating “oil” pipelines, which limits the Unicameral to that small corner of the pipeline sandbox.
A lot of lawmaker chatter in committee meetings revolves around this sticky issue. It seems the growing consensus is that a law specific to oil pipelines of a certain size, say 30-inches, might be enough to avoid the dreaded “special legislation” tag.
It seems a certainty that some form of oil pipeline legislation will emanate from the special session, most likely a “Frankenstein” bill that draws elements from all five of the pipeline-related proposals.
Such bill might include a permitting process through the Public Service Commission, with a final approval from the governor’s office. And that approval process might very well include routing requirements that make the Sandhills and other areas strictly off-limits. It’s also possible that companies would be required to post a hefty clean-up bond, while following new, more stringent rules about securing rights from private landowners, commonly referred to as eminent domain law.
Such a bill would go a long way to address most of the concerns from Nebraska pipeline opponents.
But the big mystery remains whether a new law would affect the Keystone XL project. The best guess at this point is that question will be at the center of debate when these bills reach the Unicameral floor.