AGO Opinion 83006

January 7, 1983
Senator Tom Vickers
Nebraska State Legislature
1017 State Capitol
Lincoln, Nebraska 68509

Dear Senator Vickers:

This is in response to your letter of December 16, 1982, wherein you state that you are seriously contemplating the introduction of legislation which would regulate interstate pipelines.

You have asked whether the Legislature could, consistent with the federal Constitution Interstate Commerce Clause, give Natural Resource Districts (NRDs) authority to monitor soil erosion activities of an interstate pipeline in order to assure compliance with federally imposed soil erosion standards; and Whether the Legislature could delegate to the NRDs authority to establish minimum standards for soil erosion prevention which would apply to interstate pipelines.

We conclude that regulation of interstate pipelines which carry natural gas, oil (under most circumstances), and commodities has beer. pre-empted by Congress, so that any state law which conflicts with the federal law governing regulation of the aforesaid substances must give way to the federal law by virtue of the Supremacy Clause, United States Constitution, Article VI.

The interstate Commerce Act was amended by the Hepburn Act
of 1906.

Within the Act or jurisdiction of the Interstate Commerce Commission. United States v. Ohio Oil Company, supra. Consequently, under circumstances where interstate oil only is being transported from the pipeline company's oil field, there would appear to be little question that the state may regulate the pipeline transporting that oil.

Nevertheless, and with regard to all other oil transported by interstate pipelines, it has been held that the field of interstate commerce has been pre-empted by Congress, and legislation arising there from in that regard is the supreme law of the land. Valvoline Oil Company v. United States, 60 S.Ct. 160, 308 U.S. 141, 84 L.Ed. 151 (Penn. 1939). And, in reviewing 49 U.S.C.A. §I et seq., we note that the federal regulatory scheme contained therein is relatively complete, which would indicate an intent by the federal government, as pointed out by the Valvoline case, to pre-empt regulation of interstate transportation of oil, other than oil originating at the pipeline company's own field.

With regard to interstate gas pipelines, the construction, installation, maintenance, and operation of the line is subject to the provisions of the Natural Gas Pipeline Safety Act (NGPSA) of 1968 (49 U.S.C..§1671 et seq.) . The provisions and legislative history~ of the NGPSA "indicate quite clearly that federal legislation has pre-empted the entire field of gas pipeline safety," which would include aspects of construction in the interest of "uniformity-: of regular.Northern Border Pipeline Com Jackson County, 512 F.Supp. 126] (1981).

Even though a law which you might introduce in Nebraska
would be different in terms of natural resource protection,
such fact would still not be sufficient to remove the subject
matter of the law from the Border Pipeline Come, any v. Jackson Cooper Id Citv of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 36 L.Ed.2d 547, 93 S.Ct. 1854 (1973); Rice v. Santa Fe Elevator Corporation, 331 U.S. at 230, 91 L.Ed. 1447, 67 S.Ct. 1146.

Very truly yours,

Attorney General