Thursday morning, Nebraska Unicameral Speaker Mike Flood issued a letter to his colleagues and the Governor expressing his view that he is not in favor of a holding a special session on pipeline siting.
His view was based upon a legal memorandum from his legal counsel, as well as his own legal analysis (Flood is an attorney).
We have uploaded the legal memorandum for you to review here. It is a basic memo which cites case law, regulations, statutes and the proposed Nebraska Act. If you are not comfortable with legal-eze, this document is not for you.
But guess what? What this whole thing is about, is LAW.
See, we have ourselves a country based on the rule of law. Now those who are camping out at Wall Street or who dance on the Governor’s desk or who believe drums are the way to express yourselves often do not understand that. They think if they yell louder than the person next to them, they get extra votes and stuff. Or if their foam finger is bigger than the other person’s foam finger, they get to have their rules.
Well marchies, it don’t work like that.
The gist of the memo, as Flood has put it, is that if a siting law had been in place, say, five years ago, the anti-pipers or the move-the-pipers might be in a better legal position. The antis often like to point to the Montana siting law to say that Nebraska could do the same thing. But Montana’s has been in place for some time — and frankly may not be Constitutional. Until that law is challenged in some way, it will stay on the books. But even if Nebraska mimics that one, it may still not work.
Flood and his legal counsel’s point is that the proposed Nebraska law may violate the Commerce clause, and possibly preempt federal law. To boil it down, if the issue is commerce between states, your state law cannot unduly burden that commerce. Particularly when other reviews have looked at issues like “safety”, and your new law just looks like NIMBY (that’s Not In My Back Yard..). And then there is the question of whether a Nebraska law would actually try to override Federal law, which you cannot do.
So state Senator Dubas has responded, well hey, we will write a NEW law then! And Jane Kleeb has yelled (with hands on hips), well, the legislators better act, or we will act for them!
(For more fun with Senator Dubas and her TransCanada money, see Joe Jordan’s report today.)
Yeah. Uh huh.
Well here is the deal: This pipeline review has been going on for over three years (maybe five?), and the Boldies just decided — through their radical enviro buddies — that the protesting the pipeline would be a grand way to try to stop the Canadian Tar Sands oil. And now they are complaining that their 11th hour bill should get more time and attention. Well, you know what? It does not work that way.
There are laws that have to be followed. And establishing those laws have methods that must be followed.
So hey, one of the ways to (legally) stop the pipe is for the Democrat Secretary of State, former first lady via Arkansas and Senator from New York, Hillary Clinton to say “no”. That is one of the rules to be followed. And we are pretty sure that she takes direction from the Democrat President of the United States, Barack Obama. So there are two people they can look at, and then blame for their woes.
And Speaker Flood is not the end-all-be-all either. He just has to have a legal review and personally depend on that review and share it with others. He has done that. We are sure that there are others who think differently on the siting issue. We saw that the Congressional Research Service thought that the states could regulate siting. Though the review we saw done by them (whether they were even lawyers or not) did not address half the legal issues Flood and his lawyers did.
But we do not doubt that Jane or state Senator Ken Harr, board member of the local Sierra Club, would like the legislature to slam through some bill, and damn the consequences. Because THEY DO NOT WANT THE PIPELINE IN ANY WAY, SHAPE OR FORM. Why? Because they want to stop the Canadian Tar Sands oil.
That’s it. That’s their goal.
And no matter how much NIMBY they have stirred up — even though the State Department’s own study, as well as the Sandhills’ preeminent groundwater expert say the route is safe — they will never OK the pipe, no matter where it is.
Moving the route is not their plan. Stopping the pipeline, and thus the oil, is their plan. And their response to legal memos and calm discussion is beanie babies, foam fingers and trick-or-treaters.
Tough to argue with those, eh?