In a long-awaited decision that has factored into President Obama's indication that he will veto the Keystone XL pipeline, the Nebraska Supreme Court delivered a split decision on a landowner lawsuit attempting to block the route through Nebraska chosen by TransCanada, the company building the pipeline.

Last February a Nebraska district court found that a law passed to allow use of eminent domain to build the pipeline was unconstitutional, a decision appealed to the state supreme court. Today, four of the state's seven justices agreed that the three landowner/plaintiffs have standing to challenge the constitutionality of the law and that the lower court was correct in finding the law unconstitutional. However, the Nebraska constitution says that a supermajority of five justices is required to find legislation unconstitutional.

LB 1161, the law the landowners were challenging, allowed the state's governor to pass along right of eminent domain in construction of the pipeline to TransCanada. Anti-pipeline activists were particularly incensed because this handed over to a foreign company the right to take Nebraska land for pipeline construction, superseding the rights of local property owners along the route.

David Domina, the landowners' attorney pointed out that a majority of the judges found that the landowners had standing and that the three that found they didn't refused to vote on the constitutionality issue.

"We had a unanimous four-justice majority declaring the statute unconstitutional," he said. "But the Constitution requires five votes. This means the three justices who we lost with on standing controlled the outcome by refusing to vote on the merits."

Susan Dunavan, one of the landowner plaintiffs, said, “I am thankful to the Nebraska Supreme Court Justices for hearing our case, but I am deeply disappointed that the Judges have ruled against Judge Stacy’s decision regarding the lawsuit challenging the constitutionality of LB 1161. I am alarmed that our elected officials are allowed to pass legislation that directly violates the Nebraska State Constitution. A dangerous precedent has been set by this ruling. This ruling is in violation of our landowner rights, denies our right to due process and allows our lawmakers to continue to ignore the Constitution of the State of Nebraska.”

The decision comes on the same day the U.S. Senate is scheduled to vote on approval of the pipeline again and it is sure to fuel supporters' insistence that Obama should let the project go forward. He has previously said it would be wrong to grant approval without the Nebraska route question settled, something many pipeline opponents have echoed as well. The pushback has already begin. with Lisa Murkowski, chair of the Senate Energy and Natural Resources Committee, saying the decision "wipes out President Obama's last excuse" and the American Petroleum Institute saying he "has no more excuses to delay on deny the Keystone XL pipeline."

Sierra Club's executive director, Michael Brune feels, "The Nebraska Supreme Court’s ruling has no effect on the President’s authority to make the decision to reject the Keystone XL tar sands pipeline. The President has repeatedly stated that he will reject the tar sands pipeline if it fails to meet the national interest and if it contributes to the climate crisis—and this court ruling has nothing to do with either of those things."

The argument is now likely to pivot to whether 35-5o permanent jobs should take precedence over the potential impact of the pipeline and the dirty tar sands oil it carries on the environment.

“This decision does nothing to alter the fundamental facts on Keystone," said Amanda Starbuck of Rainforest Action Network. "Not only does the pipeline present dire threats to indigenous communities, ranchers and the Ogallala aquifer, it miserably fails the administration’s own climate test. The millions of people who have joined the movement to stop this pipeline are looking to President Obama right now to choose the only option compatible with a stable climate: immediate rejection.”

“When you take a punch, you stand up and keep on fighting," said Jane Kleeb of grassroots citizens group Bold Nebraska, which has helped organize the opposition to the pipeline in the state. "We continue to stand with President Obama in his skepticism of the export pipeline and encourage him to reject Keystone XL now. The only decision that will bring peace of mind to landowners is watching the President use the power of the pen to stop this risky pipeline once and for all.”

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