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Attorney: Nebraska landowners still have legal options to fight the Keystone XL pipeline

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LINCOLN, Nebraska — Nebraska opponents of the Keystone XL oil pipeline will continue to fight the project, even though the state's highest court allowed its planned route to stand, an attorney for the group said Monday.

Omaha attorney Dave Domina said landowners on the route can challenge the project again once pipeline developer TransCanada uses eminent domain to get access to their property. Once the company begins that process, Domina said individual landowners can fight the company in court battles that could take two to three years with appeals.

In addition, Domina said the landowners could file a new legal challenge against the law itself, using landowners who live directly on the route. Or they could lobby Nebraska lawmakers to try to change the law. It's too early to know which approach they'll choose, Domina said.

"This decision has simply been punted down the road, to be answered another day," Domina said in an interview. "It's up to TransCanada to make the next move."

The Nebraska Supreme Court on Friday ruled against three landowners who sought to overturn Nebraska's 2012 pipeline-siting law, which they say violates the state constitution. Not all of the plaintiffs owned property along the route, but the group sought legal standing as Nebraska taxpayers challenging an illegal use of state money to review the project. TransCanada later reimbursed the state.

The Nebraska attorney general's office argued that, among other things, that the landowners didn't have legal standing to bring the case.

The high court ruled 4-3 that the plaintiffs had standing, and four judges also deemed the law unconstitutional. The remaining three declined to review the constitutional arguments, arguing that the landowners lacked the legal standing. A five-judge supermajority was needed to overturn the law because it raised a constitutional question.

Pipelines are generally reviewed by the Nebraska Public Service Commission, but the siting law allowed then-Gov. Dave Heineman to approve it after a review by the state's environmental department. Heineman, a Republican, supported the pipeline, and the environmental department is a part of the governor's administration. Public Service Commission members are elected.

TransCanada spokesman Shawn Howard said offers to landowners are set to expire on Friday, at which point the company can begin eminent domain proceedings. Howard said the company will continue to discuss deals with landowners who are still negotiating in good faith. When warning letters were sent in December, the company said it had voluntary agreements from 84 percent of landowners along the route.

The $8 billion pipeline would carry oil from Canada through Montana and South Dakota to Nebraska, where it would connect with existing pipelines to carry more than 800,000 barrels of crude oil a day to refineries along the Texas Gulf Coast.

Environmentalists and other opponents argue that any leaks could contaminate water supplies, and that the project would increase air pollution around refineries and harm wildlife. But many Republicans, oil industry members and other backers say that those fears are exaggerated and that the pipeline would create jobs and ease American dependence on oil from the Middle East. They note a U.S. State Department report raised no major environmental objections.

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