Nebraska court to weigh Keystone
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The fate of one of President Barack Obama’s most politically charged decisions may come down to an arcane legal question: Is the proposed Keystone XL pipeline like a telephone wire?
That’s one of the main issues facing the Nebraska Supreme Court as it prepares to take on Keystone, an internationally watched controversy with symbolic importance for Obama’s legacy on climate change and real implications for Democrats in November.
Continue ReadingThe seven justices are expected to hear arguments by October on a lower-court ruling that rejected Republican Gov. Dave Heineman’s authority to approve the pipeline’s route in Nebraska. The case prompted the Obama administration to postpone its own review of Keystone in April, a move that may push the president’s ultimate decision past the midterm elections.
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Unlike Obama’s State Department, which must weigh issues including global warming and North American energy security, Nebraska’s case hinges on narrower questions, such as whether state law looks at Keystone as a “common carrier” like a railroad or a telephone line. Common carriers, available for hire to any customer willing to pay, must win approval from the state’s elected Public Service Commission — not from the governor, a lower court ruled in February.
If the state Supreme Court upholds that ruling, the Public Service Commission would have seven months to a year to weigh whether to approve the route, probably pushing the outcome well into 2015. That process wouldn’t even start until Keystone builder TransCanada files an application with the commission.
If the justices overturn the lower court ruling, then Heineman’s approval of the route stands — and Keystone lands back in the Obama administration’s lap.
Political implications for the case aren’t hard to find: Two of the justices, including Chief Justice Michael Heavican, are Republicans appointed by Heineman. (The other five, all Democratic, were appointed by former Gov. Ben Nelson in the 1990s.) And the landowners who brought the lawsuit are being represented by Dave Domina, a Democrat running a long-shot U.S. Senate race against tea party Republican Ben Sasse.
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But longtime observers of the state Supreme Court said they don’t expect an overtly political decision from the justices, whose reputation is that of a conservative bunch not prone to stark, SCOTUS-style divisions.
“As far as being ideologically bent, we don’t see any of those lines on the Supreme Court,” said Anthony Schutz, an associate professor at the University of Nebraska College of Law. “Their ideology doesn’t seep through. Dissents are very rare.”
James Hewitt, a historian, past president of the Nebraska State Bar Association and author of “Slipping Backward: A History of the Nebraska Supreme Court,” said none of the justices is “dogmatically conservative.” He said that unlike the U.S. Supreme Court, where justices often vote along ideological lines and issue-scathing dissents, Nebraska’s high court is a bit more mellow.
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Still, Hewitt said: “the court is a conservative group. Nebraska is a conservative state and the court reflects that.” He added, “Conservative does not mean they are Republicans, or tea party-ites but, rather, that they are not judicial activists, and rely on precedent whenever possible” — and if precedent is not available, “they would be inclined to give great weight to the opinion of the legislative branch.”
That may work to the advantage of the pipeline supporters. Schutz said the state law that gave Heineman the power to choose Keystone’s route drew a lot of public debate when it moved through the Legislature in 2012, and lawmakers sought to strike a political balance. A conservative court may be inclined to defer to their judgment.
“The court’s subtext may be, ‘Given that fact, who are we to overturn it?’” Schutz said. He added, “It’s difficult to step in and overturn the decision that the Legislature made after lots and lots of debate. … They’re reluctant to do that.”
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