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TransCanada’s Pause Explained with Legal Eagle Observations

Oh TransCanada! You are at it again. Fumbling the risky Keystone XL project at every turn. TransCanada is now whining to the State Department to “pause” the entire process that has been going on since 2007 so they can “wait” on Nebraska.

The truth is TransCanada sees the writing on the wall—Pres. Obama is getting ready to reject the risky and carbon intensive pipeline, so their last move, their latest Hail Mary, is to make a political move.

Good news is, all the reports coming out of DC are the President is not falling for this political ploy.

The only hope TransCanada has of getting this pipeline approved is under a “President Trump” or “President Carson” administration (or any GOP candidate). So, in their twisted logic, they asked the State Department for a “pause” in the hopes that the President has lost his mind and he allows a delay long enough for a Republican (fingers crossed, standing on one leg) to get into the White House in 2016 and hand TransCanada their billion dollar baby.

Here are the many problems with TransCanada’s political move:

  • TransCanada is trying to pretend they all of a sudden care about the “uncertainty” of the Nebraska route. It’s too late. Gov. Heineman certified a route in 2013 — a bad route and a route using an illegal law, but it’s a certified route nonetheless. So, while TransCanada says there is no route in Nebraska, and we wish that was true, right now there is one that they forced down our throats. LB 1161 only allows a pipeline company which has originally sought to use its provisions to seek approval through the PSC process if the route is “not approved by the Governor”. The Governor approved TransCanada’s proposed route in January 2013 through the LB 1161 process. Therefore, TransCanada cannot now use the PSC process.
  • Over 100 landowners are suing TransCanada over the illegal routing process of LB 1161, and for using eminent domain for private gain. In order to try to “erase” that lawsuit, TransCanada asked the judge to “dismiss” the case. They thought that would make us happy, and they could then be able to apply to the PSC to get their route reviewed. The problem here is the landowners are NOT letting the lawsuit go, since it’s about more than KXL and we do not want to be back in this situation with another pipeline. Which means, they are still stuck with their bad route because the law (LB 1161) has not been ruled unconstitutional (yet!).
  • If landowners lose in the courts, AND if Gov. Ricketts and the State Legislature do some back room deal, we suppose they could pull back the state certification of the Keystone route in Nebraska and then, maybe, TransCanada could go through the PSC. But as things stand right now, TransCanada is stuck—and so are we—with the bad route they submitted to the State Department that was certified by the state of Nebraska (even though it was under what we contend an illegal routing law).
  • For everyone out there that is moaning saying “haven’t we been here before”: Well, every twist of this long and winding road presents a new challenge. The first time Pres. Obama rejected KXL in 2012, we actually did not have a route in Nebraska. We had no state law to give the PSC their marching orders. This time, we actually do have a certified route in Nebraska, despite what the lying liars of TransCanada say. The President also vetoed KXL once before. That was a bill the Big Oil-soaked GOP (and a few Dems) tried to be clever about and got handed a big smack down by Pres. Obama.

Ok, so that is very much in the weeds. And so is this next part…words from the legal eagles!

The Legal Case

After talking with the legal eagles at Domina Law Group, NRDC and the Sierra Club, here are some solid legal points any advocate and member of the press need to know:

  • The President can reject the Keystone XL Permit now.  The latest effort by TransCanada does nothing to Pres. Obama’s authority under the Executive Order that governs cross-border pipelines.  The only thing TransCanada can do to preclude presidential rejection of its permit is to withdraw its permit application.  There is no constitutional, statutory, regulatory, or judicial ground entitling TransCanada to “stall” the President of the United States as a matter of law.
  • TransCanada is not legally entitled to a suspension of its permit application, and the Department of State is on solid legal grounds to deny/ignore that request. There is no statute, regulation, or provision in Executive Order 13337 (put into place by Pres. Bush in 2004) that legally entitles TransCanada to “pause” the Department’s ongoing review. Indeed, TransCanada’s November 2, 2015 letter does not cite any such provision.
  • There is precedent for federal agencies denying similar “pause” requests for suspensions. For example, the 10th Circuit upheld the Bureau of Land Management’s (BLM) denial of a coal mine operator’s request for a 5-year suspension of its application under the Mineral Leasing Act, holding it was a matter within the agency’s discretion. Hoyl v. Babbitt, 129 F.3d 1377, 1386 (10th Cir. 1997); see also Getty Oil Co. v. Clark, 614 F.Supp.904, 919 (D. Wyo. 1985) (recognizing the Department of Interior’s authority to deny an oil company’s request to suspend a drilling permit).
  • The Nebraska Public Service Commission can probably proceed only if the court strikes down both LB 1161 and Gov. Heineman’s action under it as null and void.  If that occurs, there will be no gubernatorial approval and the PSC could go forward because what Heineman did will have been declared a nullity. In legal terms, the Governor’s action would be void ab initio, or from the time of occurrence.  The law would treat the gubernatorial action as though it never occurred, but this point is reached if, and only if, the Nebraska Landowner lawsuit now in court produces a judgment declaring LB 1161 unconstitutional and void.
  • If LB 1161 is not ruled on, or is upheld, gubernatorial approval of the route will remain a legal fact and preclude PSC action on the same route. Which means, TransCanada can only go forward in the PSC process if the landowners win and TransCanada loses in court.

Now that I bothered our legal eagles, I will let them get back to work :)

muppets-eagle

Here is the Bottom Line:

The President is within his legal authority using the Executive Order to ignore TransCanada’s pause request and to reject the Keystone XL permit now. The State Department has certified routes from MT, SD and NE (even though they are bad routes and under legal challenge!). The State Department has also reviewed those routes. Regardless of any state route, the State Department also has the climate implications of Keystone XL pipeline given the low oil price scenario, which fails the President’s climate test.

These Machines Stop Pipelines
We have to keep standing up together. Send a pen to President Obama letting him know you have his back and you want to see a rejection now. We will announce an action in DC soon with people from Nebraska and South Dakota which you will be able to get your voice heard there too (it involves a #NoKXL Soapbox!). But for now, please send a pen to the White House.

Bold Nebraska is a small and mighty group. We believed from day one we would stop this pipeline. Join us to protect the land and water. Let’s show Big Oil our families and our voices matter. Let’s stop this pipeline…

BoldNE_PipelinePen_GraphicNoPause

 

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