In all of the smoke and mirrors and true protests and political posturing over the Keystone XL Pipeline, one of the least-reported issues has been the conflict between the state of Nebraska and the United States government.
That debate has not yet been settled, as Montana Governor Brian Schweitzer patiently explains to an incredulous, disbelieving Neil Cavuto.
Back in October, Nebraska Governor Dave Heineman called a special session of the state legislature. The purpose of the session was to discuss the Keystone XL Pipeline route through the state and whether the state should exercise its right to withhold approval of the route through Nebraska, since it seemed apparent at that time that the State Department was moving toward approval before the end of 2011. Since Heineman couldn't be certain that the Obama Adminstration would delay their decision, Nebraska chose to exercise their rights to block, or at the very least, delay, approval of the pipeline.
Two bills were passed as a result of that special session. The first is the Major Pipeline Siting Act, which requires pipeline owners to submit their plan to the state for approval. From the Nebraska legislature, this explanation:
LB 1 adopts the Major Oil Pipeline Siting Act, which sets out a procedure for pipeline carriers to follow. An application must be approved by the Public Service Commission prior to beginning construction of a major oil pipeline in Nebraska. One or more public hearings would be held. In making the decision as to whether the pipeline is in the public interest, the Commission can evaluate evidence of the impact due to intrusion upon natural resources, including evidence regarding the irreversible and irretrievable commitments of land areas and connected natural resources and the depletion of beneficial uses of the natural resources. The Commission can also evaluate the reports submitted by related agencies, as well as the views of the governing bodies of the counties and cities in the area of the proposed route. The Commission is preempted by federal law from looking at safety issues when making their decision. Furthermore, LB 1 requires the approval of an application prior to the use of eminent domain.
In other words, any route submitted to the Feds has to first be approved by the state. The second piece is LB 4, which allows Nebraska environmental agencies to coordinate with federal authorities in the review of the revised route.
LB 4 will allow the Nebraska Department of Environmental Quality to work with federal agencies in a review under the National Environmental Policy Act involving a supplemental environmental impact statement, as a result of the agreed upon revised route in Nebraska. In order to make sure that the supplemental environmental impact statement is impartial and avoids any appearance of conflict of interest, it was decided that the State of Nebraska would pay for the associated costs. (The initial environmental impact statement that was approved in August was paid for by TransCanada, who recommended contractors to complete the analysis.) After the supplemental environmental impact statement is prepared, the Department is to submit it to the Governor for his approval.
The reason all of this is important is because it completely neutralizes the argument on the right that the Obama Administration "killed jobs" and "caved to environmental interests." The Republican governor of Nebraska is the guy in the driver's seat right now, because even if the State Department had decided it was safe, the route would be delayed while waiting for the state to complete the route revisions, submit them for public comment and grant right of eminent domain where necessary.
By the way, it also neutralizes the argument that the decision is just a political gambit to buy the Administration time to mollify environmental critics long enough to garner support for President Obama's re-election bid. This decision was based on the Administration's refusal to be forced into approval by the artificial deadline imposed by Congress. The ultimate decision will require a route approved by Nebraska befre State gets involved.
When that special session of the Nebraska state legislature adjourned, the message Nebraska sent was that they, and they alone, would control the timeline for approval of a major pipeline through their state. And as the governor notes, there are plenty of pipelines in their state. It's just that this one encroaches on an aquifer, something Nebraska citizens oppose, regardless of party affiliation.
One of the more interesting parts of the Nebraska/Federal government wrestling over approval rights on this pipeline is seeing oil companies argue that the Commerce clause is being violated by Nebraska, simply because they saw stronger allies in the State Department than the Nebraska legislature.
It's also fun to watch Neil Cavuto's head nearly explode.
Update 11:25 AM PST: In what can be only viewed as possibly the most cynical statement ever, the Republican Nebraska governor Heineman released a statement this morning saying the President had "made a mistake", because he could have approved the pipeline "conditionally", pending the Nebraska rerouting and subsequent approvals.
Let me put that in English, rather than Republicant. Mr. Heineman would like to use the President's decision to delay approval of the pipeline as political cover for his own decision to actually listen to the people in his state who approved and facilitated the delay and re-routing.
Charles and David Koch couldn't ask for a better puppet.
Update 1:25pm PST: Governor Heineman is on Cavuto right now trying to argue that there should be approval for a pipeline without a route.