Keystone XL Pipeline Route through Nebraska Upheld on Constitutional Technicality – for Now

by Sandra Zellmer

January 15, 2015

In almost any other appellate court, winning over a simple majority of the justices means that you win the case.  Not so in Nebraska. 

Last Friday, in Thompson v. Heineman, a majority of the Nebraska Supreme Court found the Keystone XL Pipeline routing law, LB 1161, which granted the Governor the power to approve Keystone’s route through the state, unconstitutional.  The catch?  Nebraska’s rarely invoked Const. Art. V, § 2, or “supermajority clause.”  Under this clause, “no legislative act shall be held unconstitutional except by the concurrence of five judges.”  Therefore, five out of seven justices must agree in order to strike down a law as unconstitutional—and since only four justices found the Keystone law unconstitutional, the court was forced to vacate the lower court’s ruling.  (See my previous blog on the subject here.)

The clause is an obscure oddity. It only arises in cases in which the constitutionality of an act is at issue. For all other cases that come before the court, only a simple majority is needed to secure a favorable ruling.  Since being enacted during the Nebraska Constitutional Convention of 1920, the court has only invoked it three other times to uphold a statute despite a majority of the justices finding the law unconstitutional.  Only one other state, North Dakota, has a similar provision, which requires four out of five justices to find a statute unconstitutional in order to strike it down.  N.D. Const. Art. VI, § 4.  Ohio once had a similar requirement as well, but it was repealed in 1968. All of these provisions were adopted in the early 20th century, and all of them reflect a distrust of the judiciary and, most likely, a backlash to Lochner v. New York (1905), where the U.S. Supreme Court struck down a progressive piece of labor legislation as unconstitutional.

So, how did such an arcane rule come to bear on this case?  In Thompson, a majority of the court affirmed the lower court’s determination that the plaintiffs, many of whom are landowners in the projected path of the pipeline, had taxpayer standing because the case presented questions of “great public concern.” However, three judges dissented, arguing that the plaintiffs had failed to demonstrate that there were no better suited parties to assert their claims and thus had no standing. The majority fired back, stating that “the dissent’s reasoning on standing would so limit the pool of effective plaintiffs as to render taxpayers mere spectators without a forum to challenge a perceived manipulation by the Legislature of the fundamental limits on political power in Nebraska.”

Moving on to the merits of the case, the majority determined that LB 1161 was unconstitutional for two reasons.  First, LB 1161 unlawfully delegated a duty constitutionally conferred on the Public Services Commission (PSC) to the Governor.  Noting that the PSC’s “absolute and unqualified” power was derived from Art. IV, §20 of the Nebraska Constitution, the court reasoned that the legislature could not deprive the PSC of its regulatory powers over “common carriers” such as the Keystone XL pipeline through a piece of general legislation like LB 1161. Secondly, the majority found that LB 1161 unlawfully delegated the power to grant eminent domain to private organizations, such as TransCanada, to the Governor, when only the legislature can grant such permission.

The disagreement came to a head when the three dissenting justices refused to touch the constitutionality of LB 1161 and instead argued that the “supermajority clause” applied not only to constitutional claims, but to standing determinations in constitutional cases as well. The dissenters believed that since only four justices had found that the plaintiffs had standing, the court could not proceed to the merits of the claims. 

Regardless of whether or not the “supermajority clause” applies to standing, it unquestionably applies to constitutional claims. Without any of the three dissenting justices addressing the constitutionality of LB 1161, the court had no choice but to vacate the lower court’s ruling, and allow the Keystone XL route to stand as approved by the Governor.  Effectively, an obscure constitutional technicality related to the Supreme Court’s voting procedures makes the lower court’s ruling null and void—despite four out of the seven justices finding that the plaintiffs had standing and that LB 1161 was unconstitutional.  In what seems to be an antithesis of American democratic values, the minority viewpoint ruled the day, cheating the plaintiffs out of their hard-won and much deserved victory.

However, all hope is not lost for the aggrieved landowners. TransCanada is under a tight deadline to begin eminent domain proceedings by Jan. 22, two years from the date that Governor Heineman approved the route.  Once this occurs, it will become more evident which landowners will be directly within the pipeline’s route, perhaps paving the way for a challenge based on traditional standing, which the dissenters hinted they would accept.

The plaintiffs may be down in this fight, but they’re not out for the count.  Meanwhile, the Nebraska Supreme Court’s decision reveals the fallacy of the “supermajority clause”—majoritarian legislatures occasionally adopt unconstitutional provisions, ranging from improper delegations of power, like LB 1161, to restrictions on freedom of speech and religion to provisions that discriminate against minorities.  Without the checks and balances of judicial review, dangerous and degrading constitutional violations may go uncorrected.

Zellmer extends her gratitude to Nebraska College of  Law student Kathleen Miller for her outstanding research and drafting work.

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Also from Sandra Zellmer

Sandra Zellmer is the Robert B. Daugherty Professor of Law at the University of Nebraska College of Law, where she began teaching in 2003. She is also a co-director of the University's Water Resources Research Initiative, an interdisciplinary educational and research effort.

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