Keystone XL Spill: Defining 'Public Interest' as Nebraska decision looms

CHICAGO --- On Thursday, 5,000 barrels of oil leaked from the controversial Keystone XL pipeline in South Dakota. The leak comes as neighboring Nebraska is set to decide on the long-delayed pipeline on Monday.

Michael Barsa, a professor of practice at Northwestern Pritzker School of Law, is an experienced litigator in high-profile environmental and natural resources cases. While in private practice, he defended major oil companies after spills. He also has written about oil spills as part of his work on the Deepwater Horizon disaster. He can be reached at 312-608-8824 (cell) or [email protected].

“Pipelines leak. That’s just a fact of life,” Barsa said. “The real question is: Knowing that pipelines leak, does the public interest still support building one through Nebraska?”

Barsa notes that the Federal Pipeline Safety Act of 1994 expressly pre-empts state pipeline safety laws, which means the Nebraska Public Service Commission – the body charged with deciding on the pipeline – technically cannot take into account pipeline safety, and thus, spills, when making its decision.

“But that’s not how the real world works,” Barsa said. “Nebraska still has the power to decide whether the pipeline is in the ‘public interest,’ and Nebraska has defined ‘public interest’ broadly to mean protecting the welfare of Nebraskans, which includes property rights, aesthetic values and state natural resources, such as water and agriculture.”

The pipeline would carry crude oil to refineries in the Gulf of Mexico, two-thirds of which is exported, Barsa notes. Because oil is a global product, the State Department has said that the effect of the pipeline on gas prices would be minimal.

“At the same time, when a leak or spill does happen, it can take generations for the land and resources to recover,” Barsa said. “Nearly 30 years after the Exxon Valdez spill, Prince William Sound in Alaska is still feeling the effects, with over 20,000 gallons of oil still contaminating the soil, numerous species yet to recover and tourism and fishing still decimated.

“Perhaps it’s time for states like Nebraska to take a long-term view of what ‘public interest’ means,” Barsa said.