Guest Post: Nebraska Supreme Court rules (or maybe not) on the validity of the approval of TransCanada XL pipeline route through Nebraska

The following guest post has been authored by OCA Nebraska member-attorney, William Blake, a partner in the Lincoln office of Nebraska law firm Baylor Evnen. 

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In a lengthy and acrimonious opinion issued January 9, 2015, the Nebraska Supreme Court issued a non-decision on the constitutionality of the process for routing of the TransCanada pipeline through Nebraska. It may prove to approve the route by default. The Court’s opinion answers very little, and raises far more questions than it answers. The only thing that is clear is that not every pipeline can be granted the power of eminent domain. To have that power, the owner must be a common carrier, which means the pipeline cannot exclusively carry the owner’s product. “[T]he reason common carriers can exercise the right of eminent domain lies in their quasi-public vocation of transporting passengers or commodities for others. A citizen’s property may not be taken against his or her will, except through the sovereign powers of taxation and eminent domain, both of which must be for a public purpose.”

It takes five of the Court’s seven judges to declare a statute unconstitutional, and only four judges so opined in this case. However, the other three declined to offer any opinion other than that they had no jurisdiction to do so. Therefore, at least for now, the route seems to be approved, and the pipeline will be a common carrier for which the power of eminent domain can be used.

See Bill’s previous post here in which he discusses the subject of this Nebraska Supreme Court opinion – the District Court ruling which struck down the state law as unconstitutional that allowed the Governor to approve a route for the TransCanada Keystone XL pipeline to cross the state.  

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