Keystone XL Pipeline Litigation? - 2

Giving New Meaning To "Protection"

In the first post of this series we discussed the issue of the state of the law with regards to who could use oil from the Keystone XL pipeline (assuming it is approved).

This discussion was in the context of its usage by the U.S. Government.

And more importantly, federal laws forbidding that use.

Remember that the U.S. Government (includes military) is the single largest user of toxic oil that is destroying life, flora, fauna, and even global climate peace on this planet Earth.

The consensus seems to be, as pointed out in the first post of this series, that it would violate federal law for the U.S. Government to use that tar-sands oil.

Considering that breaking the law (even the supreme law of the land written in the U.S. Constitution) has not held the government back from violating the law, that aspect of the subject was not a show stopper.

Enter the state courts of Nebraska:

Because LB 1161 [Nebraska statute] has the effect of either temporarily or permanently divesting the PSC [Public Service Commission] of control over the routing decisions of oil pipelines subject to the act, and because LB 1161 vests such regulatory control over common carriers not in the Legislature but in NDEQ and the Governor, the evidence before this court clearly establishes LB 1161 violates NEB. CONST. art. IV, § 20, and therefore is unconstitutional. Furthermore, the court finds there is no set of circumstances under which such provisions could be constitutional.

(Nebraska Keystone XL Case, PDF; cf. this). Nebraska constitutional law requires that either the legislature or the PSC have authority over oil pipeline common carrier practices, but the statute in question, LB 1161, did not comply with the Nebraska Constitution.

The state says it will appeal Judge Stacy's decision, but it appears to be a sound decision, which leaves the question of standing (right to sue) of the plaintiffs as the weaker part of the case.

In the mean time, this may give President Obama (who denied the first application for a Presidential Permit) to consider the issue over a longer period of time.

I criticized one democrat for an improper analysis of the issue in The Red Green Show of Ed Shultz, so let's hope he also reconsiders (UPDATE: last night on The Ed Show, he reflected on all the evidence and urged President Obama to not approve the pipeline because of the grave danger to the Ogallala Aquifer).

The previous post in this series is here.