Keystone Pipeline May Be First Clash between President and New Congress

by Nossaman LLP
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So the new Congress has been sworn in back in Washington, and the nation gears up for the first big clash between the Republican-controlled Congress and President Obama.  What will the first major battle be:  health care; taxes; immigration?  No, the first big clash appears destined to be over the controversial Keystone XL pipeline project and the potential for over 1,000 miles of right of way subject to potential eminent domain.  As reported today by Reuters,

Republican senators kicked off the new U.S. Congress with legislation to approve the hotly disputed Keystone XL oil pipeline, but the White House promptly threatened a veto.

For those who haven’t followed the saga, the pipeline is proposed to run from Canada all the way to the Gulf Coast, and passionate proponents and opponents have made it a major fight, both politically and legally.  In terms of eminent domain, the project would involve adding 1,179 miles to an existing pipleline that already transmits oil to the Gulf Coast.   That portion of the pipeline that would traverse Nebraska has been especially controversial, as courts and the legislature have been wrangling over rules to allow (or not allow, depending on one’s perspective) the project proponent, TransCanada, to use the power of eminent domain in Nebraska.

So where do things stand?  A Nebraska landowner challenged TransCanada’s right to take his property by eminent domain, and the trial judge ruled that the Nebraska law allowing the action is unconstitutinoal.  That ruling is currently pending before Nebraska’s Supreme Court.  Congress appears ready to pass a bill approving the project as soon as this week, even as the legal process is playing itself out in Nebraska.  In part because of the pending Nebraska court case, President Obama has indicated that he would veto the bill.  At the moment, it does not appear as if Congress has enough votes in the Senate to override a veto.  (The bill is sponsored by all 54 Reppublicans and 6 Democrats, but would need 67 votes to override any veto.)

For a little more background on what makes the project controversial, a November 18, 2014, New York Times article, Keystone Pipeline Pros, Cons and Steps to a Final Decision, provides a good Q&A.

                                                           

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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