Sandra Zellmer on CPRBlog {Bio}
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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, § 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.)


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A Win for Nebraska: Lancaster District Court Struck Down Governor's Approval of Keystone Pipeline

A Lancaster County District Court has struck down the governor's decision to approve Keystone XL's pipeline route through the state in Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014).  As described in a previous blog, LB 1161 was passed in 2012 to give Governor Dave Heineman the authority to approve the route rather than having the state's Public Service Commission (PSC) make the decision. The court found that the PSC--not the governor--is constitutionally empowered under Nebraska Constitution Art. IV § 20 to play the lead role in approving the pipeline's route.  The PSC was created in the late 1800's to prevent precisely this kind of overreaching by politicians who were inclined to grant political favors to powerful railroad executives who wanted to expand their routes through private property. "If such abandonment or abolition of [the PSC's] regulatory control were permitted, the protection afforded to Nebraska citizens by the constitutionally created and empowered PSC would cease to exist."  Thompson, supra, at 43.  

The court found "no set of circumstances" under which LB 1161 could be upheld.  Under the court's ruling, LB 1161 is unconstitutional and void, and the governor's action in approving the pipeline route is also null and void. Accordingly, the court permanently enjoined the state from authorizing the pipeline route pursuant to LB 1161.  This means that the state is also prohibited from allowing Transcanada to exercise eminent domain to obtain easements over private property for the pipeline.  

Governor Heineman vowed to appeal the ruling, but there's no doubt that the decision could cause more delays in finishing the pipeline.  If and when the legislature fixes the constitutional problem by giving authority back to the PSC, the PSC will have to decide whether to approve the current pipeline route.  If the PSC alters the route or any other specifications, the State Department will have to prepare another supplemental Environmental Impact Statement or Environmental Assessment to analyze the impacts of any significant changes.  

At the very least, President Obama and Secretary John Kerry would be wise to withhold approval until the dust settles on the state's decision-making processes.  Better still, President Obama could simply deny the permit as failing the "national interest" test, given the serious potential for pipeline leaks and greenhouse gas emissions, and the broader negative implications for creating a more sustainable energy portfolio for America's future.

No one needs yet another "Unnatural Disaster," as Christine Klein and I explain in our new book.

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Nebraska Activists Making a Difference in the Keystone XL Fight

A Nebraskan activist?  Wait, you say, isn’t that an oxymoron?  But the typically stoic, non-litigious citizens of Nebraska are indeed standing up and taking notice, and the nation is starting to take notice of them.

A few days ago, a Washington Post headline predicted, “Nebraska trial could delay Keystone XL pipeline.”  As you may already know from the news and my previous blogs, the State Department released a draft supplemental environmental impact statement (EIS) on the pipeline in March.  It initiated this supplemental review to take into account a revised pipeline route through Nebraska (around 200 miles of the pipeline’s 1,179-mile route would be situated there).

The draft EIS concluded that Alberta’s oil sands would be developed with or without Keystone XL; as such, it indicated that the pipeline’s impacts on greenhouse gas emissions and climate change would be minimal. The Environmental Protection Agency’s comments on the draft EIS are extremely critical of its analysis of the project's effect on climate change. The Agency also highlighted the State Department’s failure to consider alternative routes that avoid critical water resources, such as the Ogallala High Plains aquifer, in Nebraska and surrounding states.

President Obama stated that he would reject the pipeline if it would “significantly exacerbate” GHGs.  The President has also expressed concern that the pipeline would do little to stimulate the economy or create jobs.  Ironically, the economic impact on the Midwest could be negativethe pipeline, which is designed to move crude oil to Gulf Coast refineries and then on to world markets, could actually make gas prices in the Midwest go up.  So, the Midwest would get all of the downsides and few of the advantages if the pipeline were built. 

The State Department’s final EIS, and the final decision by the President and Secretary John Kerry, is expected this fall.

Meanwhile, events in Nebraska are taking on a life of their own.  A lawsuit filed by Nebraskan ranchers and a grassroots organization, Bold Nebraska, is pending in state court (Thompson v. Heineman, Neb. Dist. Ct., No. CI 12-02060).  Earlier this summer, the court rejected the state's motion to dismiss their case, and set a Sept. 27 trial date.

The lawsuit alleges that the state legislation that established a new pipeline routing process is unconstitutional under Nebraska law.  Instead of having the state regulatory agency—the Public Service Commission—make the routing decision, the legislation allows Nebraska Governor Dave Heineman to approve the pipeline route, which he did earlier this year.  His approval also authorized Transcanada’s use of eminent domain to condemn private property along its path.  The plaintiffs argue that the legislation unlawfully delegated to the Governor both the routing decision and the decision to allow eminent domain, without imposing any substantive safeguards or standards, thereby violating due process requirements. In addition, it’s a piece of “special legislation,” enacted for the benefit of just one corporation, which violates equal protection principles.  Finally, it denies citizens any avenues for meaningful judicial review (other than a constitutional challenge like this one).

If the plaintiffs prevail on any one of these arguments, the Nebraska pipeline route would be tossed out, as would the legislation’s process for approving new routes. TransCanada would need to seek approval for its route from the Public Service Commission, and it could not exercise eminent domain over houses, farms, and ranches along the way until it had received all necessary approvals and permits.  The decision would impact the decision-making process in Washington, DC, too, because the State Department could not issue a final EIS on the impacts of the pipeline when the route across Nebraska remains in doubt. 

Those who question the need for activists, lawyers, and courts should take note. Litigation may be messy, expensive, and lengthy, and it’s an imperfect means of resolving disputes.  But it’s one of the few effective slingshots that local “Davids” have against a well-heeled international Goliath like TransCanada.



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CPR Scholar Sandi Zellmer: Senate Passes Wrong-Headed “States’ Water Rights Act” WRDA Amendment to Facilitate N.D. Fracking

The 2013 Water Resources Development Act (WRDA), as adopted by the Senate on May 13, S.601, would authorize $12 billion in federal spending on flood protection, dam and levee projects, and port improvements.  A new version of WRDA is passed every few years, and it is the primary vehicle for authorizing U.S. Army Corps of Engineers’ water projects and for implementing changes with respect to the Corps’ water resource policies.

S.601 contains several notable provisions, not the least of which is the so-called “States’ Water Rights Act” Amendment.  This amendment would bar the Corps from charging a storage fee for “surplus water” drawn from Missouri River reservoirs.  For the purposes of Section 6 of the 1944 Flood Control Act, which governs Missouri River operations, “surplus water” is defined as water stored in a Corps of Engineers reservoir that is not required because the congressionally authorized need for the water never developed.  In the Dakotas, the water in question was originally intended for irrigation, but irrigated agriculture in this region did not develop to the extent anticipated in 1944.

In the midst of one of the most severe draughts seen by this region since the 1930’s, one has to wonder whether there could ever be such a thing as “surplus” water.  Last summer, crops withered in the field, and low water levels on the Missouri threatened to shut down commerce on the Mississippi River and to disrupt shipments worth billions of dollars.

What kind of sleight of hand might this be? 

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Blistering Comments on State's Draft Keystone XL Environmental Impact Statement

Monday was the deadline for public comment on the State Department's draft Environmental Impact Statement (EIS) on the Keystone XL Pipeline. Mine, which I submitted with the support of two of my University of Nebraska colleagues, are here. The State Department had initially announced that it would take the unusual path of refusing to make all of the comments available to the public absent a Freedom of Information Act request, but after a storm of criticism, the Department has reversed its decision to play hide and seek and now promises to post them all on a website.

Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of opposition from environmentalists and others, could well carry the day on the merits, persuading the President to reject the project as contrary to the national interest. At minimum, they will serve as fodder for subsequent litigation against the construction of the pipeline, if it's approved.

The EPA is hardly alone in its criticism. In my comments, I focused on several problems with the State Department's analysis. I write that the draft EIS failed to comply with the requirements of the National Environmental Policy Act (NEPA), a law that requires federal agencies to evaluate the harmful environmental consequences of their actions and to consider ways to carry out those actions so that they mitigate or avoid such consequences.

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The CWA's Antidegradation Policy: Time to Rejuvenate a Program to Protect High Quality Water

This post was written by CPR Member Scholars Robert Glicksman and Sandra Zellmer.

Visual images of burning rivers, oil-soaked seagulls, and other grossly contaminated resources spurred the enactment of the nation’s foundational environmental laws in the 1970s, including the Clean Water Act (CWA). Similarly, evocative prose like Rachel Carson’s description of the “strange blight” poisoning America’s wildlife due to widespread use of pesticides played a critical role in alerting policymakers and the public to the need for robust legal protections for public health and the environment. 

Environmental law, however, has always been about more than just repairing the damage wrought by past disasters or resource mismanagement. Senator Edmund Muskie, the principal sponsor of the CWA, was moved to action not only by the despoliation he witnessed but also by “[t]he beauties of nature . . . in almost pristine form” he marveled at while growing up. 

Antidegradation Goals

The reasons to mandate the improvement of inferior quality natural resources are relatively obvious, and include ensuring that exposure to, or use of, those resources does not adversely affect human health, destroy critical wildlife or fish populations, or otherwise disrupt ecosystem functions. By contrast, no single goal explains legal mandates to prevent degradation of superior quality resources.  Instead, antidegradation programs in the CWA and in other environmental laws rest on a variety of rationales, including the desire to protect special or unique resources, to provide a margin of safety to offset the risk that regulations will not provide enough protection due to imperfect knowledge or flawed regulatory implementation, to prevent the movement of industry to areas with superior environmental quality but more lenient requirements, to prevent interstate pollution, and to preserve opportunities for future generations and future growth.

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Protecting Our Greatest Asset: Ratifying the Convention on Biological Diversity

a(broad) perspective

Today’s post, co-authored by CPR Member Scholar Sandra Zellmer  and Policy Analyst Yee Huang, is the fourth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental TreatiesEach month, this series will discuss one of these ten treaties. Previous posts are here.

Convention on Biological Diversity
Adopted and Opened for Signature on June 5, 1992
Entered into Force on December 29, 1993
Number of Parties: 193
Signed by the United States on June 4, 1993
Sent to the Senate on November 20, 1993
Reported favorably by the Senate Foreign Relations Committee on June 29, 1994

Biodiversity is the range of variations in all forms of life, from the genetic level to the species level to the ecosystem level. This diversity of life sustains all processes on the planet, built up over the several billion years of the planet's existence. It has intrinsic as well as aesthetic, cultural, and spiritual values, and an economic value too. The diversity of plants and animals has contributed to more nutritious diets, an increased human lifespan, and treating treatable illnesses. Economists estimate that humans derive trillions of dollars’ worth of ecosystem services such as water retention and filtration from wetlands, air purification from trees, and agricultural productivity from healthy soils. Losing biodiversity means a devastating loss for current and future generations.

At present, 60 percent of the world’s ecosystem services are being degraded or over-exploited. According to the Millennium Ecosystem Assessment, the situation “could grow significantly worse during the first half of this century.” To combat the loss of biodiversity and ecosystem services, conservation strategies at the local or national level are nowhere near sufficient. It’s a global problem, and international partnerships are essential to addressing it.

By the mid-1980s, the need for broad international cooperation to safeguard the biodiversity of all animal and plant species and their habitats had become apparent. The United States led the effort to get the Convention on Biological Diversity (CBD) off the ground and into the diplomatic arena. For nearly a decade, the United States continued to work in support of the CBD through several different administrations of both political parties.

The three primary objectives of the CBD are to conserve biodiversity, to use biodiversity in sustainable ways, and to access and share the benefits (such as new pharmaceuticals) from biological resources. The CBD strives to meet these goals by having the parties to the treaty integrate conservation and sustainable use into their decision-making processes to avoid or at least minimize adverse impacts to biodiversity. Parties retain discretion in determining how to do this, and the CBD explicitly states that they should use “customary and local efforts as appropriate.”

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The Pipeline That Refuses to Die

Last month, President Obama denied TransCanada’s permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills.

A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama’s decision while 36% disagree with it.  Yet just this week, the U.S. Senate is considering whether to add language to an unrelated highway authorization bill to force the President to approve the Keystone XL tar sands pipeline

The pipeline rider has the backing of 44 Republicans and one Democrat in the Senate.  Passing it is a bad idea on several levels.  For one thing, riders like this one short-circuit the congressional process.  By inserting an unrelated substantive provision like this into an authorization or appropriation package, the provision doesn’t receive the scrutiny that it would if it were forced to stand on its own, and Senators who are against the pipeline might feel compelled to vote in favor of the package because it includes other benefits for their constituents.  (For this reason, many state constitutions forbid appropriations riders, but the federal constitution does not.) For more on this see my article Sacrificing Legislative Integrity at the Altar of Appropriations Riders:  A Constitutional Crisis.

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TransCanada Says Nebraska Bill on Pipeline Rerouting Is Unconstitutional. Here's Why They're Wrong.

The Nebraska Legislature is in a special session currently to consider five bills concerning the proposed Keystone XL pipeline. The situation was shaken up by Thursday’s announcement from the Obama Administration that it was pushing back its decision on federal approval of the pipeline. This news may take away some urgency for the Nebraska Legislature, but considering that no options (including the original proposed route) have been taken off the table, the bills remain firmly relevant. Nebraska—and any other states that lack regulations for protecting state interests from the effects of oil pipelines—should move forward despite measures that may (or may not) be undertaken by the federal government on the Keystone XL pipeline.

This afternoon the full Nebraska legislature will begin debate on one of the bills currently under consideration, LB4, which would provide state authority to approve or reject pipeline routes within Nebraska. Specifically, a panel appointed by the Governor—to include the DEQ, the Public Service Commission, the Department of Natural Resources, and representatives from landowner groups and others—would determine whether the proposed pipeline route imposes unacceptable risks on the state’s natural resources, based on six statutory criteria designed to ensure that pipeline routes comply with the state’s Ground Water Management and Protection Act, its Nongame and Endangered Species Conservation Act, and other conservation oriented objectives (the criteria are specified in Section 7 of the bill).

TransCanada has made a number of arguments against the bill and others like it, including saying it is preempted by federal law, that it violates the dormant commerce clause of the Constitution, and that requiring pipeline rerouting would be a “taking” in violation of the Fifth Amendment.

Last week I testified before the legislature’s Natural Resources Committee, arguing that a similar bill, LB1, passes Constitutional muster. (The primary difference between LB1 and the bill currently pending before the full legislature, LB4, is that LB1 gave authority to the Public Service Commission rather than a gubernatorial panel.) I believe that these bills are not just Constitutionally sound, but good policy: the exercise of state sovereignty over land use, soil and water conservation, and aesthetics is an important element of a viable federal-state partnership. Here are some of my responses to the critics:

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Species Conservation Efforts Only a Scapegoat in Missouri River Flooding

This post was written by CPR Member Scholar Sandra Zellmer and John H. Davidson, an emeritus professor of law at the University of South Dakota. It appeared first in the Omaha World-Herald.

As the Missouri River nears the 500-year flood mark, we sympathize with those whose homes and businesses are flooded. And we recognize that it’s natural for the afflicted to cast blame on a scapegoat — a practice as old as recorded history. But those who blame the flooding on the U.S. Army Corps of Engineers’ efforts to conserve native wildlife species are deeply misinformed.

First, there is no legal basis for pointing fingers in this direction. The Flood Control Act of 1944 — the statute that authorized the big mainstem dams in North and South Dakota — prioritizes flood control and navigation. The Act also authorizes operations that benefit wildlife and, when it comes to listed species, the Endangered Species Act (ESA) requires federal agencies to avoid jeopardizing species.

In operating the dams, the Corps is bound by both Acts. But the Corps has been whipsawed by lawsuits brought by both upstream states, which want to maintain high water levels in the spring to enhance the walleye fishery, and downstream states, which demand high summer and fall water levels to support the commercial navigation season and to cool their power plants. The corps’ management of the river has had far more to do with the demands of the states than the demands of tern and plover.

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