In re Application No. OP-0003

Summary

The Nebraska Supreme Court affirmed the Nebraska Public Service Commission’s approval of TransCanada Keystone Pipeline, LP’s proposed Mainline Alternative Route under the Major Oil Pipeline Siting Act. The court held that the Commission had jurisdiction, that TransCanada met its burden of proof, that the Commission properly considered the alternative route, and that the intervenors received due process.

Holdings

1. The PSC had jurisdiction to consider TransCanada's application without a prior gubernatorial denial of the proposed route. The gubernatorial route-approval process and the MOPSA process are independent statutory avenues.
2. Sufficient evidence supported the PSC's determination that TransCanada proved by a preponderance of the evidence that the Mainline Alternative Route was in the public interest.
3. The PSC properly considered and approved the Mainline Alternative Route even though TransCanada's application requested approval of the Preferred Route.
4. The intervenors received constitutionally adequate notice and an opportunity for a full and fair hearing regarding the Mainline Alternative Route, and any notice objection was waived by participation without timely objection.
5. The PSC acted within its authority when it limited the tribes' participation to issues relevant to social and cultural impacts and imposed reasonable limits on witnesses, discovery, and cross-examination.
6. The PSC did not commit reversible error by admitting public comments, agency reports, and consultant reports; MOPSA authorized the evidence, and the intervenors failed to show unfair prejudice.
7. The intervenors could not properly litigate their constitutional challenges to various statutes in this MOPSA route-approval proceeding because those challenges were extraneous to the controlling issue of whether the route should be approved.

Questions Presented

1. Whether the Nebraska Public Service Commission had jurisdiction to consider TransCanada's application without a prior gubernatorial denial of the proposed route.
2. Whether sufficient evidence supported the PSC's finding that TransCanada met its burden of proving that the Mainline Alternative Route was in the public interest.
3. Whether the PSC had authority to approve the Mainline Alternative Route even though TransCanada's application requested approval of the Preferred Route.
4. Whether the intervenors received adequate notice and procedural due process regarding the Mainline Alternative Route.
5. Whether the PSC properly limited the scope and manner of the tribes' participation in the administrative proceeding.
6. Whether the PSC improperly admitted public comments, agency reports, and consultant reports as hearsay.
7. Whether the intervenors could raise constitutional challenges to various statutes in the Major Oil Pipeline Siting Act proceeding.

Disposition

affirmed