CPR Archive for Sandra Zellmer

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

by Sandra Zellmer | January 15, 2015

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.)

The clause is an obscure oddity. It only arises in cases in which the constitutionality of an act is at issue. For all other cases that come before the court, only a simple majority is needed to secure a favorable ruling.  Since being enacted during the Nebraska Constitutional Convention of 1920, the court has only invoked it three other times to uphold a statute despite a majority of the justices finding the law unconstitutional.  Only one other state, North Dakota, has a similar provision, which requires four out of five justices to find a statute unconstitutional in order to strike it ...

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

by Sandra Zellmer | February 20, 2014
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 § ...

Nebraska Activists Making a Difference in the Keystone XL Fight

by Sandra Zellmer | August 12, 2013
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 ...

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

by Sandra Zellmer | June 14, 2013
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 ...

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

by Sandra Zellmer | April 23, 2013
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 ...

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

by Sandra Zellmer | October 16, 2012
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 ...

Protecting Our Greatest Asset: Ratifying the Convention on Biological Diversity

by Sandra Zellmer | May 30, 2012
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 Treaties. Each 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 Pipeline That Refuses to Die

by Sandra Zellmer | February 16, 2012
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 ...

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

by Sandra Zellmer | November 14, 2011
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 ...

Species Conservation Efforts Only a Scapegoat in Missouri River Flooding

by Sandra Zellmer | July 06, 2011
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 ...

Atrazine, Syngenta's Confidential Data, EPA's Review, and the Five Stages of Grief

by Sandra Zellmer | January 13, 2010
My family has gotten a lot smaller lately. My mother died in 2004, my father in 2007, and my uncle in 2008. I’ve done the five stages of grief, as introduced by Elisabeth Kübler-Ross in 1969, but not exactly as she described. It’s true that I initially felt denial: “I’m a lucky person; this can't be happening.” Then I was angry and felt sorry for myself. Then, at least during my mother’s struggle with pancreatic cancer, I hit the bargaining ...

Also from Sandra Zellmer

Sandra Zellmer is the Robert B. Daugherty Professor of Law at the University of Nebraska College of Law, where she began teaching in 2003. She is also a co-director of the University's Water Resources Research Initiative, an interdisciplinary educational and research effort.

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