Updated: 2:35 p.m. | Posted: 11:22 a.m.
Nebraska regulators Monday approved a Keystone XL oil pipeline route through the state, breathing new life into the long-delayed $8 billion project, although the chosen pathway is not the one preferred by the company that hopes to build it and could mean more time is needed to study the changes.
The Nebraska Public Service Commission's vote also is likely to face court challenges and may even require another federal analysis of the route, if the project's opponents get their way.
"This decision opens up a whole new bag of issues that we can raise," said Ken Winston, an attorney representing environmental groups that have long opposed the project.
Environmental activists, American Indian tribes and some landowners have fiercely opposed the project since it was proposed by TransCanada Corp in 2008. It would carry oil from Canada through Montana, South Dakota and Nebraska to meet the existing Keystone pipeline, where it could proceed as far as the U.S. Gulf Coast. Business groups and some unions support the project as a way to create jobs and reduce the risk of shipping the oil by trains that can derail.
President Barack Obama's administration studied the project for years before finally rejecting it in 2015 because of concerns about carbon pollution. President Donald Trump reversed that decision in March.
The route approved 3-2 by the Nebraska commission would be five miles longer than the one TransCanada preferred and would require an additional pumping station. Commissioners who voted for it said the alternative route would affect less rangeland for endangered species.
TransCanada CEO Russ Girling issued a statement after the ruling saying the company would study "how the decision would impact the cost and schedule of the project."
TransCanada has said that it would announce in late November or early December whether it planned to proceed with building the pipeline — which would carry an estimated 830,000 barrels of oil a day — and would take into account the Nebraska decision as well as whether it has lined up enough long-term contracts to ship oil.
The company submitted three proposed routes to the Nebraska commission. The route preferred by the company would have taken a more direct diagonal north to south path across the state and a third route was rejected because it would have crossed the environmentally fragile Sandhills area.
Keystone XL would expand the existing Keystone pipeline network, which went into service in July 2010. The current pipeline network runs south through North Dakota, South Dakota, Nebraska, Kansas, Oklahoma and Texas and extends east into Missouri and Illinois.
More than 90 percent of Nebraska landowners along TransCanada's preferred route have agreed to let the company bury the pipeline beneath their property, but those who oppose it have managed to thwart the project for years. Approval of the route gives TransCanada the ability to gain access to the land of holdout landowners through eminent domain proceedings. The company has said it will still try to negotiate with landowners and use eminent domain as a last resort.
The approved route would follow the path the company prefers through four northern Nebraska counties. But instead of turning south as company officials had hoped, the alternative route would continue southeast until it encounters the path of the original Keystone pipeline that went into service in 2010. The new Keystone XL would then run parallel to the original Keystone pipeline until Steele City, Nebraska, where it would connect to an existing pump station.
"We see many benefits to maximizing the co-location of the Keystone XL pipeline with Keystone I," the majority wrote in its opinion. "It is in the public interest for the pipelines to be in closer proximity to each other, so as to maximize monitoring resources and increase the efficiency of response times."
Jane Kleeb, executive director of Bold Alliance, a pipeline opposition group, said her coalition still needed to review its options, but added, "We will stand and fight every inch of the way."
Kleeb said her group believes that the U.S. State Department will have to review the project once again because it involves a new route. If that happens, the process would require additional public hearings and could take two years.
The Public Service Commission is composed of four Republicans and one Democrat, all directly elected by district. Kleeb said pipeline opponents plan to challenge two of the Republican commissioners, Frank Landis and Tim Schram, who voted for the alternative route and are up for re-election in the 2018 general election. The commissioners said they wouldn't comment beyond their written statements because their decision could be subject to a court review.
Commissioner Crystal Rhoades, the commission's lone Democrat, said in a dissenting opinion that TransCanada had failed to show the project was in the public interest.
Rhoades said she was particularly concerned that the alternative route could violate the due process rights of landowners who live along the new alternative route. "These landowners will now have their land taken by the applicant and they may not even be aware that they were in the path of the approved route," she said.
Opponents could appeal the Nebraska commission's decision to a state district court, and the case would likely end up before the Nebraska Supreme Court. The commission was forbidden by law from considering a recent oil spill in South Dakota on the existing Keystone pipeline in its decision.
"This is a long and winding road," said Brian Jorde, an attorney for the landowners. Jorde declined to specify how his clients would proceed, saying he didn't want to reveal their legal strategy.