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TransCanada, the Canadian corporation that plans to build a massive tar sands pipeline through the United States, has signaled that it is preparing to begin eminent domain proceedings against Nebraska landowners who stand in its way.

Author and environmentalist Bill McKibben, whose environmental activist group, 350.org, has rallied against the Keystone XL pipeline, told Planet Experts he finds the whole idea more than a bit unhinged.        

“It’s crazy that a foreign company can take American farmland to run Canadian oil to the Gulf of Mexico so it can be shipped abroad,” McKibben said Thursday.

If completed, the Keystone XL will carry approximately 830,000 barrels of tar sands crude from Alberta to the US Gulf Coast and onward to foreign markets. The pipeline’s southern portion is already complete, winding from Cushing, Oklahoma to the Gulf, but the project’s northern leg has been has been mired in legal difficulties.

The latest obstacle to construction: TransCanada lacks 16 percent of the easements it needs for the pipeline to go ahead in Nebraska.

The not-for-profit Nebraska Easement Action Team, set up to aid Nebraska landowners negotiate with TransCanada, told the Lincoln Journal Star that 115 of its members have refused to grant the company access to their property until it provides greater assurances that their health and safety will be protected. One such provision landowners are seeking would mandate that the TransCanada remove the pipeline once it is no longer in use.

A 30-inch pipeline being prepared for the Keystone near Swanton, Nebraska in 2009 (Source: Creative Commons)

A 30-inch pipeline being prepared for the Keystone near Swanton, Nebraska in 2009 (Source: Creative Commons)

Time may be running out for TransCanada. Under the Nebraska Major Oil Pipeline Siting Act, signed into law by Republican Governor Dave Heineman into 2011, TransCanada has until January 22 to obtain the easements it needs. The law gave Heineman the authority to bypass the Nebraska Public Service Commission and approve the Keystone XL. But, in bypassing the Public Service Commission to clear the way for the pipeline, the governor might have overstepped his bounds within the Nebraska constitution.

That was the conclusion a lower court judge came to in February, siding with three landowners who challenged the Siting Act’s constitutionality. The state has appealed the decision and the case (Thompson v. Heineman) has moved on to the Nebraska Supreme Court.

But the high court might not even decide on the constitutionality of the law. Lawyers for the state have sought to have the suit thrown out, arguing that the landowners – who brought the case under Nebraska’s “taxpayer exemption” that allows citizens to haul the government to court when state funds have been wrongfully appropriated – lack standing. No funds were misallocated, attorneys for Nebraska have argued, because TransCanada reimbursed the state for an environmental review that originally set taxpayers back $2 million.

That $2 million could make the suit go away.

The Supreme Court’s ruling could come any day now. Or not, which would be bad news for TransCanada, since their permit expires on January 22 under the Siting Act.

To begin eminent domain proceedings against landowners, the company could be forced to provide courts with a federal permit for the Keystone XL. But the case before the Nebraska Supreme Court has stalled an expected decision on the pipeline’s fate from the Department of State. In January, the department completed its environmental impact statement on the pipeline, which falls under its domain since it traverses the U.S.’s border with Canada. However, it extended an interagency review of the report pending the Nebraska high court’s decision.

“They don’t have state approval, and they don’t have federal approval,” Bill Blakely an attorney specializing in land law told the Journal Star, explaining that without the requisite permits TransCanada will have a hard time asking judges to grant easements.

Chances that the company could convince all the remaining landowners in their way to grant them easements are slim.

Andrew Craig, TransCanada’s land manager on the Keystone XL pipeline, estimated that a portion of those holding out are doing so on principle alone.

“They don’t think that we should be developing fossil fuels,” Craig said in a statement. “I don’t think we’re ever going to overcome that.”

Opposition to fossil fuels has also led tens of thousands of people to protest the Keystone XL across the country. James Hanson, formerly with NASA’s Goddard Space Institute and a leading climate scientist has described the pipeline as “game over” for the planet if it is built, due to the high levels of carbon pollution that would ensue.

In March, approximately 400 activists, mainly students, chained themselves to the White House fence to protest the Keystone XL. The following month, a group calling itself the Cowboy Indian Alliance — composed of farmers, ranchers and indigenous tribes who live along the proposed route of the pipeline — set up a temporary encampment on the National Mall, voicing similar concerns. In September, many of the more than 300,000 people who marched in the People’s Climate March, two days before President Obama and other world leaders addressed a UN Climate Summit in New York City, carried signs warning of the ecological threats posed by the pipeline.

An August 2011 demonstration against the Keystone XL pipeline (Source: Creative Commons)

An August 2011 demonstration against the Keystone XL pipeline (Source: Creative Commons)

Much of protesters’ attention has been directed at Obama, since no matter what the lower courts decision, or the outcome of the State Department’s interagency review, the ball falls in the White House’s court.

“The Keystone XL will be decided by the president — that’s been clear from the start,” Bill McKibben said, pointing out that TransCanada needs his presidential stamp of approval its permit.

Obama has sent mixed signals. Campaigning in Cushing, Oklahoma in 2012, Obama boasted to crowds that his administration had already added “enough new oil and gas pipeline to encircle the Earth and then some.” Specifically referencing the Keystone XL’s southern portion, later rebranded the Gulf Coast Pipeline Project, Obama, said he was directing his administration “to cut through the red tape, break through the bureaucratic hurdles, and make this project a priority, to go ahead and get it done.” 

That segment is already up and running, connecting oil in Cushing to refineries in Texas and Louisiana as of January.

Appearing to be leaning against building the pipeline’s northern portion in September, Obama pledged at the UN to help ensure “the world we leave to our children, and our children’s children, will be cleaner and healthier, and more prosperous and secure.”

Such a world, critics contend, is less likely to exist if TransCanada gets its way. For now, landowners in Nebraska are holding the frontline.

Two protesters from the Tar Sands Blockade (Source: Creative Commons)

Two protesters from the Tar Sands Blockade (Source: Creative Commons)

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