We recently posted a summary of the TransCanada pipeline issue (currently splashed across the front pages nationally) by our Owners' Counsel of America colleague William Blake, a partner in the Lincoln office of Nebraska law firm Baylor Evnen.
Today, in a highly anticipated decision (Thompson v. Heineman, No. S14-158 (Jan. 9, 2015), a majority of the justices of the Nebraska Supreme Court (four) concluded that the legislature's efforts to get around the Public Service Commission's authority is unconstitutional.
But in a quirk of Nebraska law, four-out-of-seven isn't enough. Under the Nebraska Constitution (art. V, § 2), "[n]o legislative act shall be held unconstitutional except by the concurrence of five judges." Here's the court's summary:
The State appeals from the district court’s judgment that determined L.B. 1161, which the Legislature passed in 2012 [which allows "major oil pipeline" carriers to bypass the regulatory procedures of the Public Service Commission], was unconstitutional.Neb. Const. art. V, § 2, in relevant part, requires that a supermajority of this court’s members concur before it can strike down legislation as unconstitutional: “No legislative act shall be held unconstitutional except by the concurrence of five judges.”
Four judges of this court have determined that the appellees (the landowners), who challenged the constitutionality of L.B. 1161, have standing to raise this issue and that the legislation is unconstitutional. Three judges of this court conclude that the landowners lacked standing and decline to exercise their option to address the constitutional issues.
The majority’s opinion that the landowners have standing controls that issue. But because there are not five judges of this court voting on the constitutionality of L.B. 1161, the legislation must stand by default. Accordingly, we vacate the district court’s judgment.
Slip op. at 802. So the case ends not with a bang but with a whimper, and we get an opinion with a holding on standing, and dicta on pretty much everything else.
