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TransCanada says bill on Keystone XL rerouting is unconstitutional; law professor says they’re wrong

Today, the Nebraska Legislature will begin debate on one of the bills currently under consideration to reroute the proposed, and now delayed, Keystone XL pipeline. Nebraska, along with many other states, lack regulations for state interest from the effects of oil pipelines. The full legislature will begin debate on LB4, which would provide state authority to approve or reject pipeline routes within Nebraska.

TransCanada has said such a state law would be unconstitutional and would be pre-empted by federal law. But in a blog post today for the Center for Progressive Reform, Sandra Zellmer, University of Nebraska professor of natural resources law, says the bill, like a similar one (LB1) before it, passes constitutional muster. She points to five main reasons why: (1) the state has a well-established authority over natural resources and water; (2) the bills are a fair expression and exercise of the public-trust doctrine; (3) state authority is not expressly or implicitly pre-empted by federal laws; (4) Delay in the environmental-impact study process does not result in a “taking”; and (5) the bills do not violate the Dormant Commerce Clause of the federal constitution, which guards against state statutes discriminating against interstate commerce either on its face or in practical effect.

Zellmer’s full argument can be found here. She can be reached at (402) 472-1245 or szellmer2@unl.edu.

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