REQUESTED BY: Dear Senator Lamb:
This is in reply to your inquiry concerning your proposed amendment to LB 119, which would require a `cancellation permit' from the Nebraska Power Review Board before a supplier of electricity could cancel the construction of any electric generation facility previously approved by the board.
You first asked if the proposed amendment would have the effect of depriving the elected board of directors of the utility of their authority to make decisions which would be in the best interests of the rate payers and thus, unconstitutional. In this regard we call to your attention the provisions of section 70-626, R.R.S. 1943, which, among other things, grants to a public power district the authority (subject to the approval of the Power Review Board per section 70-1012) to construct generation facilities. To the same effect is section 70-704 with regard to electric cooperative corporations.
In our opinion, the power and authority to construct a generation facility carries with it the power and authority to not construct such a facility. To that extent, your proposed amendment is in direct conflict, with the existing law and does not explicitly repeal it.
Although we do not find any constitutional prohibition against what you are attempting to accomplish by your proposed amendment, we might suggest that failure to reconcile the differences between the authority which we believe the power districts have under the present statutes, with the authority which your proposed amendment would confer upon the Power Review Board might cause some serious legal problems.