Today, the Nebraska Public Service Commission (“PSC”) ruled to deny TransCanada’s Permit for its proposed preferred tar sands pipeline route through Nebraska. The decision comes over three months after holding a week-long trial in August with live testimony from 25 witnesses, thousands of pages of pre-filed testimony, and evidence consisting of tens of thousands of pages both from TransCanada and opposing Landowners whose property and livelihoods would be directly negatively impacted by the proposed route. Dave Domina and Brian Jorde, trial lawyers, with Domina Law Group in Omaha, Nebraska represented the Landowners through every fight of the past seven and a half years and handled the PSC process and trial on their behalf.
“TransCanada had the burden of proof and its proof failed. Nebraska’s public interests are not served by a 36” tar sands pipeline crisscrossing through and under the most fragile highly erodible soils of our State, the Ogallala Aquifer, and cutting across five major rivers on the route proposed,” said Dave Domina adding, “we have said for years that TransCanada’s proposed preferred route was not an intelligent one and the PSC agreed. We will carefully evaluate the Order and meet with our clients.”
TransCanada’s promises to the Nation and Nebraska all along had been more jobs and tax revenues, however, at the PSC trial their witnesses admitted only 6-10 permanent jobs would be created in Nebraska and they failed to rebut Landowner evidence that overall tax revenues would actually fall if the pipeline was to be constructed. Further, TransCanada’s claim of a “fixed-entry point” in South Dakota also proved untrue.
Landowner lawyer Brian Jorde reflected, “Nebraska has been the epicenter of this issue since the beginning and it has been a long and winding road full of barriers, but we were able to use the laws and the constitution as they were meant to be used – to protect our Landowners.” Jorde continued, “It is an incredibly rewarding result particularly when the deck was so heavily stacked against us.”
Nebraska has been ground zero for challenges to the proposed pipeline as landowners organized into a tight knit group filed three state constitutional challenge lawsuits, which included a trip to the Nebraska Supreme court, and fought TransCanada in nearly 60 condemnation lawsuits and a PSC challenge. TransCanada has appealed 40 cases to the Supreme Court of Nebraska after Landowners were successful in winning fees and costs against the company. Those cases will likely be decided in 2018.
Any party could appeal the PSC order and must do so within 30 days. The Court of Appeals would review the matter without a jury and on the record as created during the PSC trial in August 2017 – no new evidence would be considered. If commenced, the State appeals process could take up to 2 years.