Legal Memorandum: Preemption of Court's Authority

Issue: Under Nebraska law, is the court’s authority ‘preempted’ by the NDEQ rules and regulations?

Neither case law nor statutes support a presumption of benefit to the public interest when the NDEQ issues a construction or operating permit under the Livestock Waste Management Act (LWMA).  The LWMA does not restrict the NDEQ to granting a construction permit only when it finds that to do so is in the public interest, unlike some statutes such as Industrial Ground Water Regulatory Act.  See Neb. Rev. Stat. § 46-683 (2000).  In fact, the LWMA appears to take a “hands off” approach, stating simply that it does not affect county zoning authority in any way.  Neb. Rev. Stat. § 54-2404.01 (2000).

Only when enacting or amending zoning ordinances, which are legislative actions, is a municipal board entitled to the presumption that it acted to promote the public good and protect the public interest.  Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 390, 397 (Neb. 1994).   Its assessment of the “public good” lies within its discretion and determination, and “unless an abuse of this discretion has been clearly shown it is not the province of the court to interfere.”  Id.  No such presumption applies to county board decisions in the quasi-judicial permitting process.

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