“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” ~ James Madison, Federalist No. 62
Madison’s quote articulates the problems attendant with too much law; if there is too much law, it cannot be known.
Considering the size of government, the corresponding tangle of laws that does exist, and the very real and frequent problem of conflicting law, the first matter of inquiry is, then….
Were the state of laws regarding the State’s authority to site and regulate the pipeline knowable?
The answer is YES, the state of the law was and is knowable on this subject.
Two documents existed by the end of 2010; one was a Congressional Research Service report dated September 20, 2010, the other, a Natural Resource Committee Interim Study Report (LR435) completed in December, 2010. These two documents, if well researched and clearly written, would make the law on this subject knowable.
What did our Nebraska officials know and when did they know it?
Nebraska’s elected officials (both state and federal level), as we have pointed out numerous times, many months ago, adopted a curiously consistent and pithy set of statements about the TransCanada pipeline issue, particularly as it pertains to the pipeline’s route, and repeated them many times since. Mostly, they sound quite like this:
“We understand your concerns (whatever they are – oh! how we feel your pain), we wish we could do something, but our hands are tied, this is a federal issue…please send your letter to D.C.”
It has already been made clear, unfortunately, that Rep. Lee Terry knowingly misled constituents about whether or not the State of Nebraska could exert authority regarding the route of the pipeline. The question is now: Did any other Nebraska officials, specifically, members of the State Legislature, also have information available that contradicted such statements and had no visible impact on future actions?
To answer those questions, we need to look at the information available to the Legislature’s Natural Resources Committee, the information revealed by their Interim Study regarding pipelines, and the report that resulted.
The Interim Study report (LR435) can be summarized as follows:
- Identified, clearly, gaps in Nebraska law regarding oil pipelines
- Provided information about how the state can ensure its sovereign authority is exercised (including some procedure)
- Included a letter from TransCanada stating it had no intention of re-routing the pipeline
- Included another TransCanada statement that makes clear the intention by the company to make use of existing Nebraska law regarding eminent domain
The Committee report’s introductory page is inconsistent with the contents found within, however, as illustrated in the following statement from it:
“Disagreement among interests will remain on whether and to what extent the state may legislate on pipelines.”
Such inexplicable confusion has very little credibility. Rhetoric and subsequent lack of action from certain Nebraska legislators would be even less explicable and their “it’s a federal issue” statements far less credible if any were aware of the Congressional Research Service report. Its language is explicit regarding state authority over oil pipelines.
The following statement, also from the introductory page of the LR435 Interim Study report, below, presented a troubling indicator:
“…though we have worked together on this issue, the research conducted by our congressional representatives is not included”
This question provoked the following list of questions in our prior article:
- Could it be that the interim study by the Nebraska Legislature was the impetus for Terry’s request that the Congressional Research Service issue a report about federal law regarding the siting and safety of oil pipelines?
- If so, why isn’t Rep. Terry’s CRS report attached to the committee’s interim study report or specifically referenced?
- Why wasn’t any of the “research conducted by our congressional representatives” included?
- Is Terry’s CRS report what is referenced in the quote?
- If the Unicameral committee did see the CRS report, why were they still confused about the State’s regulatory authority over oil pipelines?
We have answers to several of these questions:
According to a story in the Lincoln Journal Star on March 30, 2011, Congressman Terry’s spokesman Charles Isom reported:
“Terry requested the report ‘for several elected officials’ in the state”
formerly/http://www.omaha.com/article/20110330/NEWS01/703319991 further enlightens (sort of):
The memo, dated Sept. 20, 2010, was sent from the Congressional Research Service to U.S. Rep. Lee Terry, R-Neb., and shared with some state lawmakers.
While pleased to see that Nebraska’s two largest newspapers did report about the CRS report at the time pipeline opponents brought it to their attention, I find the coverage sorely lacking.
Some phrases worthy of further scrutiny / follow-up:
“several elected officials”
- Just how many is several?
- And just who are those several?
- What is the precise definition of “elected officials”?
- Does that include any other members of Congress or the Governor or only State Senators?
“Some state lawmakers”
- How many are “some”?
- Who are the “some”?
Is it just me or is there just a bizarre vagueness about the whole matter? That includes the Natural Resources Committee introductory page, their elusive yet tantalizing reference to “congressional representatives” and their “research”, and the media’s lack of follow-up.
An examination of the Natural Resources Interim Study Hearing Transcript for LR435 fills in several more blanks:
State Senator Kate Sullivan (District 41), although not a member of the Natural Resources Committee, participated in the pipeline study project. Sen. Sullivan and Committee Member, Sen. Annette Dubas, in fact, were responsible for coordinating most of the research work for the study prior to the December 2010 hearing. At the beginning of the hearing, Sen. Sullivan reviews the contents of a book distributed to the members of the committee. Besides many of the documents in what became the final committee report, she noted that the book contained the following:
“There’s also a research report by the Congressional Research Service provided by Congressman Lee Terry.”
So, a number of our questions, as included above, are answered.
Following Sullivan’s notation of the CRS report, she further stated:
“And also copies of letters from U.S. Senator Ben Nelson; U.S. Senator Mike Johanns; and also TransCanada.”
An examination of the LR435 Study Report shows that letters from TransCanada were included, but none of the letters from members of Nebraska’s federal delegation are found there. I return to the LR435 introductory page for a statement I’ve already noted that is mighty curious:
“…though we have worked together on this issue, the research conducted by our congressional representatives is not included”
We find it so curious because of the contents of the CRS report and further because Sen. Sullivan’s overview of materials included the following pledge:
“Ultimately the information in your books will be available to the public in an online report and will include documents and/or links to documents and the committee hearing transcript. The online report should be available by the end of this month.”
We still do not know why the CRS report was not included. We do not understand how any state senator who saw the CRS report or the Committee’s report, specifically any members of the Natural Resources Committee or any Senators who were involved in the three pieces of legislation introduced in January 2011, could state that the siting of the Keystone XL pipeline was a federal issue. So what obvious conclusions must be drawn from the available set of facts? Are we dealing with feigned ignorance or deliberate obfuscation and crony capitalism?
None of the bills introduced in the 2011 Unicameral session dealt with siting the pipeline or establishing the necessary framework spelled out in the LR435 report do so. None of the bills dealt with the property rights issues affected by Nebraska’s statutes on eminent domain.
Look at the bottom of this article for a list of the Natural Resources Committee and members of the Legislature who were involved in the three bills introduced in 2011. There are links to their contact information included.
They are all “Deserving of Darts“: State legislators complain frequently about “unfunded federal mandates” and “federal encroachment”. This time, the federal government was trying to respect Nebraska’s Sovereignty under the U.S. Constitution. WHY are our state legislators purposefully rejecting the opportunity to exercise Nebraska’s sovereignty by failing and refusing to act?
There is one Senator, in particular who deserves an additional and special dart, all his own…
While there has definitely been some verbal gymnastics going on, Linda and I think the most absurdly tortured set of words that appeared in the two newspaper articles can be found in the formerly/http://www.omaha.com/article/20110330/NEWS01/703319991, which reported a statement by the Chair of the Natural Resources Committee, Chris Langemeier:
“…it’s unclear what siting authority means. Does it mean, he said, that the state can direct the route around the Sand Hills, or does it mean only that the state can say how deeply the pipeline must be buried?”
How Clintonian of Senator Chris Langemeier.
Sen. Langemeier was referring to the following sentence from the CRS report:
The federal government does not have siting authority for oil pipelines, even interstate pipelines.
Chris Langemeier expected – and astonishingly – apparently, received no challenge to such word-twisting. Let’s try out Chris Langemeier’s logic. He just can’t make out what siting authority means, it could be just about the depth of the pipe, he proposed. So the Feds will tell us where to bury the pipe but we get to decide how deeply its buried? A read of the CRS report in full, curiously, leaves out the whole “we’ll-decide-WHERE-you-decide-how-deep” explanation.
Since common sense has been chucked out the window in reading clearly written statements, we can, fortunately, turn to the use of the readily available tools to arrive at some clarity. Not coincidentally, all of these tools are readily available to any Nebraskan, almost all free of charge, even to a State Senator.
1. English grammar and vocabulary basics. Let’s start with Webster’s Dictionary, searching on “siting”:
“site, sited, siting: to place on a site or in position : locate”
Note the use of the prepositions “on” and “in”; somewhere in the elementary school years, in days gone by, a thorough study of such things as prepositions, even sentence diagramming (gasp! how antiquated!) was practiced to ensure students’ thorough understanding of and ability to communicate clearly. Many prepositions add additional and very specific meaning to phrases that deal with location (i.e. under, through, above, below, between, etc.).
2. Word origin – another basic element of language understanding than can assist in deriving meaning. From the Etymological Dictionary (a delightful website), for “site“:
“place or position occupied by something,” late 14c., from Anglo-Fr. site, from L. situs “place, position,” from si-, root of sinere “let, leave alone, permit.”
3. General Nebraska statutes
A search of the Nebraska Revised Statutes on the Nebraskalegislature.gov website reveals a number of statutes which include the word “siting”, but curiously, none of the overall statute chapters include a definition of the term “siting”. In fact, the Revised Statutes use the words “site” and “siting” interchangeably with the words “location” and “locate” when referring to such matters as solid waste and water management.
Could it be because the understanding of the word is that obvious to everyone but Mr. Langemeier?
4. Usage in policy, law, and legal cases
A very little bit of Googling reveals the word “siting” frequently referenced in matters related to all kinds of energy, including government documents. Curiously, I can’t find a definition referenced. The word, again, seems to be so commonly understood that it requires no definition in document after document. See, just as two examples, an article about a Washington State Supreme Court decision and a Wikipedia article called “Transportation Planning“.
A couple of searches on website databases of U.S. Code do not readily yield a definition of “siting”, either.
The law, the cases, etc., all refer to “siting” as location, in terms of geography, not how deeply something is buried or any other such similarly minute specifics.
5. If all else fails, Mr. Langemeier should revert to his own profession’s (real estate) mantra if he is ever confused about siting…
Location! Location! Location!
Nebraska Senator Chris Langemeier richly deserves a dart all his own.
But WHO is Senator Chris Langemeier, you ask? Interestingly, his name has not come up in recent news stories about the pipeline issue. I honestly assumed the Natural Resources Chair was either Ken Haar or Annette Dubas. Langemeier has been M.I.A. Turns out he’s been a state senator for over a decade. I had a hard time figuring out his party affiliation because all I could find were references to him being pro-life and a wind energy supporter, two positions which would seem to conflict, although not so much in Nebraska. Eventually I was able to confirm he is a Republican.
A general taste of his political philosophy:
“‘I am a conservative,’ Langemeier said. ‘The liberal side is, ‘Let’s use wind and nothing else.’ In reality, we’re going to need a lot more energy. Why not use something renewable and take advantage of federal credit?‘”
I know, how about the sheer stupidity of wind energy? Nebraska has been somewhat behind the turbine on the wind energy curve, so to speak; just as the idea has begun to really infect the state of Nebraska, it’s inefficiencies and ghastly expense are becoming clearer. Also, those “federal credits” always come with strings that last far longer than the benefit of the funds.
State sovereignty, like the definition of “siting” is a foreign term for Mr. Langemeier based on his support for federal green energy credits, torture of the English language regarding Nebraska’s authority over oil pipelines, lack of action as Natural Resources Chair during the 2011 Unicameral session, and his M.I.A. status during all of the recent debate over the pipeline.
But, perhaps we should excuse Senator Langemeier for his lack of action during the session. His duties as Chair of the Redistricting Committee were likely far too absorbing to leave him time for anything else. His party needed him. At least, now his constituents know what Langemeier’s priorities are. (HINT: Their concerns are secondary.)
Finally, Nebraskans living in the state’s First Congressional District may wish to note: Senator Langemeier, at least one rumor-mill projected recently, is interested in a possible primary challenge to Congressman Jeff Fortenberry. As a citizen of that district, here’s what I think we should do with that extra dart I mentioned, the special one, just for Sen. Langemeier:
Members of the Natural Resources Committee:
Sen. Chris Langemeier District 23 Chairperson
Sen. Tom Carlson District 38
Sen. Mark Christensen District 44
Sen. Annette Dubas District 34
Sen. Ken Haar District 21
Sen. Beau McCoy District 39
Sen. Ken Schilz District 47
Sen. Jim Smith District 14
Worked on Interim Study Report (LR435):
State Senators who co-sponsored or introduced pipeline legislation in 2011:
Sen. Deb Fischer (District 43)
Sen. Tony Fulton (District 29)
Sen. Colby Coash (District 27)
Balloon photos from a photo timer product demonstration