Bill would give governor permit authority

The Natural Resources Committee heard testimony Nov. 8 on a bill that would give the governor final authority to approve pipeline routes in Nebraska.

LB4, introduced by Schuyler Sen. Chris Langemeier, would adopt the Oil Pipeline Route Certification Act. Among other provisions, LB4 would establish an application and certification process for oil pipeline routing in Nebraska.

Under the bill, authority to issue a route certification for a proposed pipeline ultimately would rest with the governor.

Langemeier said the Nebraska constitution currently authorizes the Legislature to delegate to the governor the power to administer certain statutes and programs.

“That’s in our constitution,” he said.

The bill would establish a panel of experts – including representatives of the Department of Environmental Quality (DEQ), Department of Natural Resources, Game and Parks Commission and Public Service Commission – to advise the governor.

The panel also would include one member of a county board and one landowner from each of the state’s three congressional districts. Panel members would be appointed by the governor and would serve two-year terms.

LB4 also would require DEQ to receive applications and hold a public meeting regarding a proposed pipeline route. An application would include the reason for the route selection and any alternative routes considered, details of an emergency response plan and an explanation of any additional precautions to be taken.

Within 60 days of receiving an application, the panel would submit a written recommendation to the governor regarding issuing or denying a routing certificate. The governor would issue a decision within 30 days of receiving the panel’s recommendation. If the governor failed to issue a decision, the panel’s decision would be affirmed.

Langemeier said the state has an interest in protecting its resources and environment for economic, aesthetic, recreational and other purposes. He said the panel would ensure that Nebraska stakeholders have a seat at the decision-making table.

Kansas landowner Janet Woolsoncroft testified in support of the bill. She said Kansas did not have legislation similar to LB4 when a pipeline released silt-filled water onto her environmentally sensitive land. Having state-level input in pipeline routing could protect Nebraska’s natural resources, she said.

“I believe a state will listen to its landowners long before a federal agency will,” Woolsoncroft said.

Bruce Boettcher, a Sandhills organic rancher, also testified in support of the bill, citing the need for landowner participation in the routing process. Landowners who are certified organic would have a particular interest in any potential contamination from an oil pipeline, he said.

“When you’re organic, you can’t even put creosote posts in the ground,” Boettcher said.

John Hansen of the Nebraska Farmers Union also supported LB4 particularly a provision that would require an approved certificate before a pipeline carrier could exercise eminent domain rights. He said clearer rules regarding the eminent domain process would benefit landowners and pipeline carriers.

“There are advantages to having clear rules of the road,” Hansen said. “This isn’t the last pipeline that will be coming through the state of Nebraska.”

Robert Jones of TransCanada testified against the bill, calling it unconstitutional and unnecessary. He said the company’s proposed Keystone XL pipeline already has undergone rigorous federal review over a three-year period.

In addition, he said, the outcome of the bill’s process for Keystone would be “predetermined” because Gov. Dave Heineman has made his position on the project clear through public statements.

“His mind is already made up on the routing issue,” Jones said.

Patrick Pepper, attorney at McGrath North Mullin and Kratz in Omaha, also testified against LB4.

He said the bill likely would result in the governor enacting regulations that would render valueless the land already acquired for the Keystone XL pipeline through easements. In such a situation, he said, TransCanada would be entitled to the value of the land and to monetary damages.

“That would encourage a regulatory taking for which damages could be considerable,” Pepper said.

Herb Knudsen of Ogallala opposed the bill, saying senators should wait until the next regular session to pass regulations regarding pipelines. The Keystone pipeline has been thoroughly reviewed, he said, and Nebraska does not need to pass emergency legislation to regulate it further.

“If you decide you’re going to approve something, do it on a nonemergency basis,” Knudsen said.

The committee took no immediate action on the bill.