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A Nebraska trial court opinion issued in February 2014 has helped to focus new attention on the process for siting major pipelines, the environment and the power of eminent domain.
In 2008 TransCanada Corporation, based in Calgary, Alberta, constructed the Keystone Pipeline through Nebraska. The Keystone project now transports crude oil from Hardisty, Alberta, to Wood River, Illinois. Additional phases of the project carry crude to the Gulf Coast near Houston, Texas. The crude oil is pumped through a 36-inch diameter pipe, utilizing 39 pumping stations along the route. The project was well known in the Great Plains, but it proceeded with little notice elsewhere. Then, the Keystone XL was announced by TransCanada. It was initially approached by TransCanada with the expectation, based on experience, that it would go as easily and smoothly as the original Keystone project. Many Americans are following the XL project on a regular basis, and as we well know, it has not been at all smooth and easy.
As a Nebraska lawyer who regularly represents property owners in condemnation, this author is naturally protective of private property rights and enjoys events that shed light on this dark corner of the law, especially when they help to shape public opinion in favor of property rights. These rights include primarily the right of a property owner to be paid just compensation when property is taken for public use, but also include issues of whether a private, profit-centered corporation should be allowed to acquire private property by eminent domain. If so, should such corporations be required to pay compensation based on a measure other than the well established standard of loss of fair market value?
These issues were raised by the initial Keystone project, along with the question of why it was so easy for TransCanada to select its preferred route through the nation's heartland. However, the XL debate and political campaigns have grown far beyond the rights of the affected landowners.
The Keystone XL is proposed to be a 36-inch diameter pipeline, 1,179 miles long from Alberta, Canada, to Steele City, Nebraska, where it will connect with the existing Keystone pipeline to move oil to refineries on the Gulf of Mexico.1 If built, it will be part of the network of...