Keystone XL Pipeline Route through Nebraska Upheld on Constitutional Technicality ? for Now

In almost any other appellate court, winning over a simple majority of the justices means that you win the case. Not so in Nebraska. Last Friday, in Thompson v. Heineman, a majority of the Nebraska Supreme Court found the Keystone XL Pipeline routing law, LB 1161, which granted the Governor the power to approve Keystone's route through the state, unconstitutional. The catch? Nebraska's rarely invoked Const. Art. V, s. 2, or "supermajority clause." Under this clause, "no legislative act shall be held unconstitutional except by the concurrence of five judges." Therefore, five out of seven justices must agree in order to strike down a law as unconstitutional - and since only four justices found the Keystone law unconstitutional, the court was forced to vacate the lower court's ruling. (See my previous blog on the subject here.)