857 N.W.2d 731
Neb.2015Background
- L.B. 1161 amended siting/eminent-domain processes for major oil pipelines in Nebraska.
- Lancaster County landowners sue to declare L.B. 1161 unconstitutional under Nebraska Constitution grants of power.
- L.B. 1161 allows Governor route approval or PSC review via DEQ, bypassing PSC’s control over common carriers.
- Legislature previously enacted L.B. 1 (MOPSA) and L.B. 4; L.B. 1161 created a regulatory choice between DEQ/Governor and PSC.
- District court held L.B. 1161 unconstitutional, recognizing the PSC’s exclusive authority over pipeline siting.
- Seven-judge court divided on standing; majority found lack of jurisdiction due to standing, leading to vacatur of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landowners have standing to challenge L.B. 1161 | Landowners have taxpayer standing under great public concern. | State argues lack of traditional standing and that project concerns are not great public concern. | Standing exists for landowners as taxpayers with great public concern. |
| Whether L.B. 1161 unlawfully divests PSC authority over common carriers | L.B. 1161 transfers PSC powers to Governor/delegated bodies. | L.B. 1161 applies to some carriers but preserves PSC options for others. | L.B. 1161 unconstitutional facially for divesting PSC powers. |
| Whether routing decisions under L.B. 1161 fall within PSC powers | Routing decisions belong to PSC as part of common-carrier regulation. | Governor routing decisions under DEQ procedures are permissible. | Routing decisions are within PSC’s enumerated powers; Governor authorization violates constitution. |
| Whether facial unconstitutionality applies to interstate vs intrastate pipelines | Statutes distinguishing interstate/intrastate carriers do not validate L.B. 1161. | Some statutes differentiate carriers but do not authorize unconstitutional application. | L.B. 1161 cannot be saved by narrow construction; facial invalidity stands. |
Key Cases Cited
- Cunningham v. Exon, 202 Neb. 563 (Neb. 1979) (great public concern standing exception to traditional standing)
- Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379 (Neb. 2012) (taxpayer standing when act raises great public concern and goes unchallenged)
- State ex rel. Reed v. State, 278 Neb. 564 (Neb. 2009) (public-right standing; limitations on standing exceptions)
- Ritchhart v. Daub, 256 Neb. 801 (Neb. 1999) (standing analysis and limits; general public injury not enough)
- State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262 (Neb. 1989) ( PSC powers and legislative restriction outline (five rules))