Not coming as a surprise to Attorney David Domina, the Nebraska Supreme Court refused to hear the constitutional challenge to L.B. 1161, the law that gave Governor Heineman the authority to approve the new route for TransCanada's Keystone XL pipeline. Since the Supreme Court rejected the case, the constitutional challenge will have to make its way through the lower courts first.
Domina explained that the Supreme Court rarely hears original jurisdiction, but they attempted it anyway because the case had so much public interest. Sometimes, the Supreme Court will hear cases such as this in the event of an emergency or where there is great public interest.
Nebraska landowners, environmentalists and others raised concerns that the proposed pipeline route would cross environmentally sensitive parts of the state. In response, TransCanada began working with officials from the state of Nebraska to propose a new route. But ultimately, power to approve the route still lies with Governor Heineman because of L.B. 1161.
The landowners are alleging in this law challenge that this law violates the Nebraska constitution, specifically, the portion that says matters involving common carriers and crude oil companies must be handled by the Public Service Commission (PSC).
Not only did L.B. 1161 give the governor the authority to approve the route, but it also gave him the power to dictate the use of eminent domain. This power could allow the governor to give the go-ahead to TransCanada to take private land away from landowners for the purpose of laying pipelines. The lawsuit also alleges that affected parties were deprived of due process of law.
If you would like to read more on the topic, you can view the full Law 360 article here.