In re Application No. OP-0003 -- (TransCanada)
932 N.W.2d 653
Neb.2019Background
- In 2011–2012 Nebraska enacted the Major Oil Pipeline Siting Act (MOPSA), giving the Public Service Commission (PSC) authority to approve major oil pipeline routes in Nebraska; a separate gubernatorial/DEQ SEIS process also exists.
- TransCanada (Keystone XL) applied to the PSC in Feb. 2017 for route approval (Preferred Route, PR); the application identified two alternatives including the Mainline Alternative Route (MAR) that co‑locates substantially with existing Keystone I.
- The PSC held public meetings and an August 2017 hearing; many parties intervened (landowners, Ponca and Yankton Sioux tribes, Sierra Club, unions, etc.).
- The PSC evaluated the statutory eight MOPSA factors, gave particular weight to co‑location with an existing utility corridor (§ 57‑1407(4)(e)), and by 3–2 vote approved the MAR and eminent domain authority.
- Multiple intervenors appealed, raising jurisdictional, evidentiary, notice, due‑process, and statutory/constitutional challenges; the Nebraska Supreme Court reviewed the PSC decision de novo on the record and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| PSC jurisdiction to decide route under MOPSA | Appellants: PSC lacked jurisdiction unless Governor first considered and denied the route (arguing § 57‑1405(1) requires prior gubernatorial denial). | PSC/TransCanada: MOPSA and § 57‑1101 create two independent routes (Governor/DEQ or PSC); no prior gubernatorial denial is required. | Held: PSC had jurisdiction; statutes construed in pari materia permit either process independently. |
| Whether TransCanada met burden of proof under § 57‑1407(4) | Appellants: Evidence insufficient to show any route (especially MAR) is in the public interest. | TransCanada: Presented environmental mitigation plans, agency reports, and economic testimony showing MAR meets statutory factors. | Held: TransCanada met its preponderance burden; record supports PSC finding that MAR is in the public interest. |
| Whether PSC could consider/approve MAR and whether notice was adequate | Appellants: TransCanada applied only for PR; MAR approval lacked procedural notice and required a new application or amendment. | PSC/TransCanada: MAR was included in the application and prehearing orders, parties were on notice and participated; no unfair surprise. | Held: PSC properly considered and approved MAR; notice and opportunity to be heard were adequate and objections were waived. |
| Limits on intervenors (tribal participation) / due process | Ponca/Yankton: PSC improperly limited tribal participation to cultural/social issues, restricted witnesses/time, and violated due process/equal protection. | PSC: Conditions on intervention were lawful under PSC rules and the APA to keep proceedings orderly and within truncated statutory timeframe. | Held: Conditions were within PSC authority, did not violate due process or equal protection, and did not unduly prejudice intervenors. |
Key Cases Cited
- Thompson v. Heineman, 289 Neb. 798 (Neb. 2015) (distinguishing contexts of pipeline routing review).
- Telrite Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866 (Neb. 2014) (interpreting appellate standard of review for PSC decisions after statutory amendment).
- In re Application No. B‑1829, 293 Neb. 485 (Neb. 2016) (discussing de novo review on the record for agency appeals).
- In re Application No. C‑1889, 264 Neb. 167 (Neb. 2002) (PSC public‑interest determinations entitled to deference).
- Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (U.S. 1987) (permissive intervention subject to conditions is not an immediately appealable order).