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Thompson v. Heineman

ELR Citation: 45 ELR 20004
Nos. S-14-158, (Neb., 01/09/2015)

The Nebraska Supreme Court upheld state legislation enacted in 2012 that permits major oil pipeline carriers to obtain approval from the governor to exercise the power of eminent domain for building a pipeline—such as the controversial Keystone XL—in Nebraska. A lower court held that the law was unconstitutional, and the state appealed. Four judges determined that the landowners, who challenged the constitutionality of the law, had standing. Three judges, however, concluded the landowners lacked standing and declined to exercise their option to address the constitutional issues. The first four judges went on to conclude that the legislation was indeed unconstitutional. But because the Nebraska Constitution requires that a five-judge supermajority of the court concur before it can strike down legislation as unconstitutional, and because there are not five judges voting on the constitutionality of the law, the legislation must stand by default.