After months of resisting suggestions that he call a special session to deal with pipeline legislation, Gov. Dave Heineman on Monday declared he would do just that.
During the regular legislative session, from January to June, the governor took a hands-off position on pipeline legislation, saying he would consider it if it reached his desk. But the issue was heating up as opponents of the proposed Keystone XL pipeline publicized their concerns about possible threats to the environment.
On Aug. 31, Heineman wrote a letter to Secretary of State Hilary Clinton urging denial of a permit for the pipeline route over the Ogallala Aquifer. But still, he resisted calling a special session to enact pipeline siting legislation, saying not enough senators supported a proposal to make it worthwhile.
By October 4, Heineman was calling on senators to make their position known. But he still wanted them to decide whether to take the unprecedented step of calling themselves into special session. When asked if he couldn't force them to take a stand by calling a special session, Heineman said three weeks ago that would be pointless if, for example, a bill couldn't even get out of the Natural Resources Committee. "If they don't support it, all we'll do is waste $10,000 a day," Heineman said, adding that he had never called a special session without having a pretty good idea that there was going to be a positive outcome.
But Monday, the governor said a special session is worthwhile.: "I believe Nebraskans are expecting our best efforts to determine if alternatives exist. Therefore, I will be calling a special session of the Nebraska Legislature on Nov. 1 to have a thoughtful and thorough public discussion about alternative solutions that could impact the route of the pipeline in a legal and constitutional manner," he said. Still, the governor said it's possible no action will result. "I believe that we need to make the effort. I think Nebraskans will appreciate that," he said. "But it's entirely possible at the end of the day, we'll have this conversation and the Legislature will come to the conclusion we don't have a legal and constitutional option."
Speaker of the Legislature Mike Flood raised that possibility last week, in recommending against a special session to consider a bill that let the Nebraska Public Service Commission approve or disapprove pipeline routes. Flood cited a legal analysis that said federal law preempts state law on pipeline safety, and delays from new state legislation at this point could be seen as impeding interstate commerce.
But Monday, Flood said he welcomed the news that the governor had called a session. Flood said if a solution could present more than a short-term, feel-good "bandaid" for legitimate concerns, he'd consider it carefully and act on it thoughtfully.
Senator Ken Haar of Malcolm, who's been pushing for a special session, said a new version of pipeline siting legislation will be proposed soon. And Lincoln Senator Bill Avery, who's also been pushing for a special session, applauded Heineman's decision "I think he did the right thing. The citizens of Nebraska deserve to have a voice in this process," Avery said. He added that Heineman "talks to more Nebraskans than anybody else in this state. And he saw the need for it (a special session) and he was right."
Asked what changed his mind, Heineman said it was just as a result of the ongoing conversation about the issue. And he said it's important for the state to try and act before the federal government decides on a pipeline permit before the end of the year. "One thing is very clear. The state of Nebraska would have a stronger legal basis for its action if it acted prior to the permit decision by the Obama Administration. In perfect hindsight, the state should have acted several years ago. But that's not where we're at today," Heineman said.
Heineman said the special session will probably last a couple of weeks, and he hopes it will finish before Thanksgiving.
The Consumer Energy Alliance, a pro-pipeline group, said it was disappointed in the governor's announcement. CEA said it was unfortunate the governor was ignoring the pipeline's energy and jobs benefits to instead "put taxpayers on the hook for an exercise that will either yield no legislation or put the State in the middle of a costly litigation cycle."
On the other hand, BOLD Nebraska, a group that's been in the forefront of opposing the pipeline, welcomed the news. Executive Director Jane Kleeb said she was taking the governor at his word that he's calling a special session to deal with the pipeline route. But she added "we look forward to seeing his bill to protect our land and water that specifically gets the pipeline out of the Sandhills and heart of the Ogallala Aquifer."
For it's part, pipeline company TransCanada issued a statement repeating that the pipeline would be safe on its proposed route. "By asking us to re-route, what people are asking us to do is ignore the rules we are required to follow, ignore the regulations that we are trying to meet and ignore federal laws, said spokeman Shawn Howard. He added that a new route would invalidate the federal environmental review process that's been going on for three years.