Friday, January 9, 2015

How a three-judge minority just greased the path of the Keystone XL pipeline in Nebraska

The PDF of the ruling is here, but you might want to read the executive summary below, first:

Nebraska Supreme Court refuseniks, from left: Chief Justice Michael G. Heavican, Justice Kenneth C. Stephan, Justice William B. Cassel. Attorney Dave Domina: "...the three justices who lost on standing controlled the outcome by refusing to vote on the merits." Landowner Randy Thompson: “You have seven judges and three of them decide they don’t want to score the contestant.”

The suit was brought by landowners challenging the constitutionality of LB1161, which gave pipeline siting authority to the governor. They say that violates Nebraska's constitution, which gives the Public Service Commission such authority. Four of seven judges agreed, but declaring a law unconstitutional in Nebraska requires a supermajority of five state supreme court justices.
     Dissenting judges said landowners did not have "standing" to challenge the law and then, when outvoted, refused to rule on the merits of the case.
     Here's what Randy Thompson, one of the landowners in the suit, said about that:
“It is just a ridiculous idea that a foreign corporation can have the power of eminent domain to start with—but then the idea that our legislature would grant them [that power]…to me that’s totally outrageous. I think that anyone who owns property in the United States should be outraged by that proposition. We need to address this, not only in Nebraska, but as a nation.”
     Here's how the Omaha World Herald reported the decision:
     In the 64-page opinion, Chief Judge Mike Heavican along with Judges William Cassel and Kenneth Stephan determined the court had no jurisdiction to rule on the constitutional merits of the case.
     They argued the landowners failed to make the right technical argument to establish standing, namely that their property interests would be injured by the pipeline. Instead, the landowners made a more general argument that they had a claim as Nebraska taxpayers who would be financially hurt by an unconstitutional law.
     The dissenting judges also suggested there would be “hundreds” of other Nebraska landowners who could bring a similar constitutional challenge, a reference to those whose land would be directly crossed by the pipeline.
Entire Nebraska Supreme Court including the good, the bad and the ugly:

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