Merits of the case not reached in Keystone Pipeline decision from the Nebraska Supreme Court

The Nebraska Supreme Court issued an opinion on January 9, 2015 in Thompson v. Heineman, 289 Neb. 798,             N.W.2d           (2015) ( wherein the Court could not reach the merits of the issues presented with the Keystone XL oil pipeline due to not having a supermajority vote ruling on the unconstitutionality of L.B. 1161.  As many are aware, the proposed Keystone XL Oil Pipeline is an issue of controversy for many. Four members of the Court determined that L.B. 1161 was unconstitutional, however their opinion is not binding and the issues with the Keystone Pipeline will now shift back to Washington, where the State Department must either approve or reject the Keystone XL pipeline project.

The issues presented in Thompson v. Heineman are three-fold: 1) whether the parties have standing to bring the suit 2) which entity has constitutional authority to determine a pipeline carrier’s route, and 3) whether L.B. 1161 comports with the Nebraska Constitution’s provisions that are controlling for this issue.

The Nebraska Supreme Court held that the “district court correctly ruled the landowners have standing to challenge the constitutionality of L.B. 1161. Because their complaint alleged that the act violated limits on political power under the Nebraska Constitution, it raised matters of great public concern.” See Thompson v. Heineman. The Court held that there are exceptions to the injury-in-fact requirement for standing, and the parties in this matter met such recognized exception.

The Nebraska Supreme Court further held that the district court “correctly determined that L.B. 1161 is unconstitutional. L.B. 1161 unconstitutionally transfer to the Governor the PSC’s [Public Service Commission] enumerated constitutional powers over common carriers. When a common carrier seeks the Governor’s approval of a pipeline route under the DEQ procedures, L.B. 1161 unconstitutionally gives the Governor the authority to approve the route and bestow the power of eminent domain on the carrier. The Nebraska Constitution prohibits this transfer of power. ” See Thompson v. Heineman.

Although four of the seven membered Court ruled that L.B. 1161 is unconstitutional, the judgment was still vacated as the requirements in the Nebraska Constitution, Art. V, Section 2 were not met. In relevant part, this article states, “no legislative act shall be held unconstitutional except by the concurrence of five judges.” Since there was not a supermajority vote in this case, the merits of the case were not reached, the decision regarding the unconstitutionality of L.B. 1161 is not binding, and the district court’s judgment was vacated.

The issues regarding the Keystone Pipeline are back to Washington, where the State Department must either approve or reject the Keystone XL pipeline project and the Nebraska Supreme Court’s four member vote ruling this bill unconstitutional is not binding.


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