Charles H. Sloan-Keystone XL Wins Nebraska Approval, But the Oil Pipeline Fight Isn’t Over

The Charles H. Sloanlong-contested Keystone XL pipeline got a key green light Monday that could pave the way for the roughly $8 billion project, nine years after the tar sands crude oil pipeline was first proposed.

The Nebraska Public Service Commission voted 3-2 to approve construction of the pipeline, but not on the route that the pipeline company, TransCanada, had been pushing for.

The commission rejected TransCanada’s preferred route and instead gave it the go-ahead to build along its Mainline Alternative Route, which cuts farther east across the state before turning south. The preferred route was rejected because it does not “co-locate” with any existing infrastructure; when the Mainline Alternative Route turns south, it runs adjacent to the existing Keystone Pipeline.   

If TransCanada decides to move ahead with the alternative route, it will have to reach property easement agreements with new landowners.

“As a result of today’s decision, we will conduct a careful review of the Public Service Commission’s ruling while assessing how the decision would impact the cost and schedule of the project,” Russ Girling, TransCanada’s president and chief executive officer, said.

The decision came four days after TransCanada’s 7-year-old Keystone Pipeline spilled more than 200,000 gallons of crude oil in South Dakota.

The Nebraska state commission was tasked with determining whether or not the Keystone XL extension was in Nebraska’s public interest, but the commissioners were limited in what factors they could consider. They made clear in their ruling that a 2011 Nebraska law, known as the Major Oil Pipeline Siting Act, restricted them from considering safety risks, including spills or leaks, in their decision making.

“Many inside and outside of this proceeding have urged the Commission to broaden our review to include spills and advised us that our authority under the Siting Act should not be so limited regarding safety,” the commission wrote in its ruling. “However, while we understand the passion and concerns surrounding this project, in an analysis of the Siting Act provisions, we can draw no other conclusion than that the Commission is not permitted to weigh such potential spills, leaks, or similar risks for any purpose in its analysis.”

In March, two-thirds of the state’s senators signed a letter urging the commission to approve the pipeline.

Concerns About Oil Spills, Failure to Involve Native American Tribes

Dissenting commissioners nonetheless expressed concerns about potential spills.

“All human-made infrastructure degrades and fails over time,” Commissioner Crystal Rhoades wrote in her dissent. “No infrastructure ever designed has lasted for eternity, and there is no reason to believe this pipeline will be an exception.”

Rhoades also raised concerns about TransCanada not talking with Native American tribes about its plans for the pipeline. “The Applicant admitted it had not spoken with the Nebraska Native American tribes,” Rhoades wrote. “The Applicant only reported DOS [the U.S. Department of State] had worked with the Southern Ponca Tribe, who reside in Oklahoma. This is the equivalent of asking a distant relative for permission to do major construction in your backyard. This is as inadequate as it is unreasonable.”

Though siding with the majority in approving the pipeline, Commissioner Rod Johnson put the company on notice about safety concerns.  

“TransCanada and project advocates have often said that the Keystone XL pipeline will be the safest in history,” Johnson wrote. “Nebraskans are counting on that promise.”

What Happens Next?

While a major step forward for pipeline approval, Monday’s ruling does not guarantee that the pipeline will be built. Opponents have vowed to continue to fight the project in court.

Given the low price of oil, some analysts have also questioned whether TransCanada will proceed with building the pipeline. The company, however, voiced continued support for the project earlier this month.

“We anticipate commercial support for the project to be substantially similar to that which existed when we first applied for a Keystone XL pipeline permit,” a company statement said.  

The Keystone XL expansion would have the capacity to pump more than 800,000 barrels of tar sands crude oil a day from Alberta to Steele City, Nebraska, and then on to refineries on the Gulf Coast through connecting pipelines.