A Final Fight for the Keystone Pipeline

At the end of January, Jane Kleeb, chair of the Nebraska Democratic Party, drove to the Nebraska Sandhills, a region of rolling pasture and farmland an old rancher once described as halfway past “where the prairie chickens fuck the barn owls.” As the president of the Bold Alliance, a grassroots campaign to challenge Big Oil, Kleeb had helped lead a rural resistance to defeat the Keystone XL pipeline, blocking it in-state and successfully lobbying President Obama to deny its permit in 2015. But that was before Donald Trump endorsed bringing back the project on the campaign trail, saying during one debate that eminent domain – the government seizure of private property for public use – was “an absolute necessity” for companies to beat back landowners who oppose them. Now, as Kleeb stands at the front of the O’Neill Community Center, dressed in a Western-style sports coat and cowboy boots, it is a foregone conclusion that Trump’s State Department will permit the pipeline (as it would do six weeks later), which means Nebraska is, once again, the final front in the struggle to stop it.

Many of the people in the room have been meeting now for close to a decade and represent some of the last holdouts on the pipeline’s 1,100-mile route from the Alberta Tar Sands to the Gulf of Mexico. In the coming months, the state’s Public Service Commission, a five-person panel, will make a final decision as to whether TransCanada, a foreign corporation worth $70 billion, will be able to use seized land to transport oil that would neither off-load, nor on-load, in Nebraska. The governor and Nebraska’s three House members support the Keystone XL. Thirty-three state legislators recently sent a letter to the PSC, asking the commissioners to permit the pipeline.

But thus far, government support for the project has not kept the Bold Alliance from repeatedly outflanking TransCanada, uniting the state’s farmers with two simple ideas: Fossil fuels are a threat to land and water, and corporate use of eminent domain is tantamount to theft. No pipeline has ever come before Nebraska’s PSC, whose members will rule by November 23rd on whether Keystone XL stands to benefit the state. If the commission denies the permit, Kleeb says, “I think it’s done.”

Two of the fiercest holdouts along the proposed pipeline route are Art and Helen Tanderup, Bold members who have come to take the fossil-fuel economy as a personal insult. On a visit to their farm, Art takes me down to the rye field where, in 2014, Willie Nelson and Neil Young played for 8,000 anti-pipeline demonstrators, and points out a row of cottonwood trees that screen the fields from the road. “That’s where the line comes through,” he says. “We’ve about picked out the trees we’d have to sit in.”

Art is past 60 and nearly as wide as he is tall, but he isn’t joking. In 2012, the TransCanada land agent who told Art and Helen about the Keystone XL presented the pipeline as “the best thing since sliced bread,” Helen says. TransCanada offered good money and promised to restore the topsoil – the Tanderups would never even know the line was there. “Boy, by the time she got done you just wanted to jump up and salute the American flag,” Art says. The land agent, he adds, was especially clear about one thing: This pipeline was shipping “crude oil.” Something about the pitch didn’t sit right with them, though, so Art did some research. “And I went, ‘Oh, my God, this isn’t oil.’ ”

The Keystone XL, the Tanderups discovered, would carry diluted bitumen, one of the new science-fiction technologies the energy industry has been moving toward for the past decade. Oil companies bulldoze Alberta forest to expose a thick, semi-solid tar, which is melted out of the ground with superheated steam, and diluted with byproducts of fracked natural gas. The Keystone XL is designed to send this concoction down to Texas, where, under a great deal of heat and pressure, refineries can “crack” it into crude oil. Beneath the Tanderups’ farm lies the greatest expanse of fresh water on the continent: the Oglalla Aquifer, an underground reservoir twice the volume of the Great Lakes. It is because of this aquifer that the prairies are a breadbasket to the world; in some places, the water table is so high that fence postholes fill with water. “If that thing leaks,” Art says of the pipeline, “it goes down into the water table, and we aren’t gonna know about it until something dies.”

The Tanderups told the TransCanada agents: no deal. And the agents told them they had no choice. Under rules derived from the Fifth Amendment, states have the right to take private property for “public use” provided they pay fairly for it. In most states, the standard for public use is the “common carrier” – a utility like a school, road or hospital that anyone can use. For obscure reasons of history, most states also give this right to pipeline companies. Typically, farmers can argue in court for more money, but they’re not often able to keep the pipeline off. “It’s not like the government’s saying, ‘We’re gonna improve this highway so we need another 20 foot of land,’ ” Art says. “That’s what eminent domain is supposed to be for.”

At an early Bold Alliance meeting, Art and Helen discovered the situation was worse than they’d thought. After a one-time payment, the company had control of the easement forever: It could enter at any time, destroying whatever crops it deemed necessary. “At one meeting,” Art recalls, “one lady stood up and said, ‘If Nebraska approves this, we’re just getting turned into a whore. We’re letting them pay us a little money just to abuse us.’ ” TransCanada would also force landowners to accept massive liability and restrict how they could develop their land. If a landowner accidentally damaged the pipeline – say, ran over the buried pipe with a combine – they were left holding the bag, not only for repairs and cleanup, but any lost revenues. “If that happened,” Art says, “we might as well go to the bank, withdraw all our cash and fly to a foreign country.” 

Now, with the PSC decision coming up, the fight over the future of the Keystone XL may be approaching its endgame. Following the January meeting in O’Neill, Kleeb and other Bold members fanned out across the state, holding meetings in bars, community centers and church basements. “We go to the people – we don’t expect them to come to us,” Kleeb says. “We frame it like a conversation with a friend at a coffee shop.” The small scale allows for a certain intimacy – attendees can hear, for instance, one grizzled rancher choke up about the endangered whooping cranes that have recently been visiting his land. In an environment where TransCanada is always circling, trying to pick off landowners, the meetings create the kind of solidarity that lets a cash-strapped farmer say no to a million dollars, bills on the barrelhead. “It gives you a stiffer backbone,” Kleeb says. “It’s easier to go up this steep hill if you’re not the only one pushing the boulder.”

In August, as the commission prepared to hold a round of hearings, Lincoln braced for violence. Bold had gotten more than 461,000 comments submitted to the commissioners; the Omaha World Herald and the Lincoln Journal-Star, among others, published 32 letters from Bold supporters. The police department canceled leave during a week of planned protests; Kyle Kirchmeier, the North Dakota sheriff who led that state’s police against the Standing Rock demonstrations, warned that Nebraska might be in for similar unrest. But as the day of the rallies dawned and nearly 1,000 people took to the streets, led by Lakota riders on horseback, chanting slogans like “Water is life,” the Nebraska capital was free of violence (Bold even got a tweet from the Lincoln Police Department thanking it). In a country spun toward division, it seemed a rare point of light. “For me, it was – the movement had grown so much,” Kleeb says. “A totally diverse crowd – white, black, Latino, Native American, urban and rural – marching in the streets.”

There are signs that the national attitude is shifting as well. Over the past two years, from Ohio to Kentucky, state courts and legislatures have looked skeptically at the idea of pipelines using eminent domain. In West Virginia, the Supreme Court of Appeals found little evidence that the Mountain Valley Pipeline, a natural-gas route from West Virginia to southern Virginia, would serve any “public use,” and denied its surveyors the right to enter private property without permission. In Georgia, the Republican-dominated Legislature has twice voted to deny pipeline companies the right to condemn land. The issue of fossil-fuel companies using eminent domain, says Brian Jorde, a Bold attorney, “will be before the Supreme Court again in some form.”

Kleeb is already organizing for an intensified struggle in the event that the Keystone XL survives the PSC’s decision. “We have two years of eminent-domain lawsuits” mixed with direct action and civil disobedience of the type seen at Standing Rock, she says. It is all part of Bold’s larger legacy: a new environmentalism, galvanized by a lack of access to clean water in ever more places, that has taken root in rural America. In 2014, Art got “so pissed off at TransCanada” that he installed an array of solar panels by his barn – “It’s the only crop I made money on last year,” he says – and now rolls to the town coffee shop in a Chevy Volt. “It’s good,” Helen says, “to feel like part of the solution.” If the bulldozers come, they say, TransCanada will meet massive resistance. “Money’s nice, but it’s not important,” Art tells me. “If one of your grandchildren drinks a drop of benzene, that’s important. If our grandchildren decide not to have children because they’re worried about the planet they’ll grow up on, that’s important.”