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Thompson v. Heineman

ELR Citation: 44 ELR 20030
Nos. 12-2060, (D. Neb., 02/19/2014) (Stacy, J.)

A district court held that a Nebraska law passed in 2012 to expedite the approval of a new route for the controversial Keystone XL pipeline through the state is unconstitutional. Article IV, §20, of the Nebraska Constitution commits exclusively to the Nebraska Public Service Commission (PSC) the authority over common carriers and the regulation of common carriers when regulation is necessary. Oil pipeline carriers subject to the new law—LB 1161—are common carriers, and the evaluation and approval of an oil pipeline route through Nebraska is within the PSC's constitutionally enumerated powers. Because LB 1161 has the effect of either temporarily or permanently divesting the PSC of control over the routing decisions of oil pipelines subject to the act, and because LB 1161 vests such regulatory control over common carriers not in the legislature but in the Nebraska Department of Environmental Quality and the governor, LB 1161 clearly violates article IV, §20, and therefore is unconstitutional. Prior to reaching the merits, the court also held that plaintiffs established taxpayer standing to bring a constitutional challenge to the law and that their claims were not rendered moot on January 22, 2013, when the governor approved the Keystone XL route through the state.