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Public Statements

Northern Route Approval Act

Floor Speech

By:
Date:
Location: Washington, DC

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Ms. JACKSON LEE. Mr. Chair, I thank the gentleman for yielding. And I rise to speak about the Keystone XL Pipeline Project and the legislation before us, H.R. 3.

Mr. Chair, the Keystone XL project proposed by TransCanada, a Canadian company, would build new pipeline to transport Alberta oil sands crude and crude oil produced in North Dakota and Montana to a market hub in Nebraska, and from there to Gulf Coast refineries. The proposed pipeline would deliver an estimated 830,000 barrels of oil per day. One of the most appealing aspects of the project is the positive economic impact it is expected to have on the economy.

Let me just take one State's economy and realize what would happen with this particular effort. There would be a $2.3 billion investment in the Texas economy, creating more than 50,000 jobs in the Houston area, providing $48 million in State and local taxes, increase the gross State product by $1.9 billion.

Although I favor the job creation potential of the Keystone XL Pipeline project however, the legislation contains several provisions that are of great concern to me.

First, because the pipeline would cross an international border, construction requires a presidential permit and would be subject to applicable State laws and permitting requirements.

To issue a presidential permit, the State Department, after consulting with other federal agencies and providing opportunities for public comment, must determine that the project would serve the national interest.

Because the Keystone XL project would constitute a major federal action with a potentially significant environmental impact, it is also subject to environmental impact statement requirements of the National Environmental Policy Act, NEPA.

The bill declares that a presidential permit is not required for approval of the Keystone XL pipeline's northern route from the Canadian border through Nebraska even though the project crosses an international border. This is unprecedented.

Second, H.R. 3 deems that environmental impact statements issued to date would be considered sufficient to satisfy all requirements of the National Environmental Policy Act and the National Historic Preservation Act, and the Interior Department and the U.S. Army Corps of Engineers are deemed to have granted all the necessary permits for the pipeline to proceed, including permits under the Migratory Bird Treaty Act.

As a senior member of the Committee on the Judiciary, I have a problem with ``deeming'' something done that has not been done in fact. I believe we should determine whether, under the Constitution, this alters the power of the office of the President.

Third, the bill vests exclusive jurisdiction regarding legal disputes over the pipeline or the constitutionality of this bill in the U.S. Court of Appeals for the District of Columbia and requires claims regarding the pipeline to be brought within 60 days of the action that gives rise to the claim. My amendment would have extended the time to one year.

It is unduly burdensome to require aggrieved parties to bear the considerable expense and hardship of traveling from their homes in North or South Dakota, Nebraska, Kansas, Oklahoma, or Texas to Washington, D.C. to vindicate their legal rights.

Mr. Chair, I also believe the bill before could have been improved had more amendments been made in order.

For example, an amendment I offered jointly with Congressman RUSH, Jackson Lee Amendment No. 4, would have struck Section 4 of the bill and restored the right to full judicial review to aggrieved parties.

Another amendment I offered, Jackson Lee Amendment No. 3, would have required the Secretary of Transportation to submit within 90 days of enactment a report to Congress identifying the procedures and policies adopted to ensure that women and minority business enterprises are afforded the opportunity to participate on an equitable basis in the construction and operation of the Keystone Pipeline. Had this amendment been made in order and adopted Congress would have been provided with helpful information needed to conduct appropriate oversight.

Another amendment I offered, Jackson Lee amendment No. 2, would have added a non-severability clause to the bill, which states that: ``if any provision or application of the legislation is held to be invalid, the entire act shall be rendered void.''

This non-severability clause simply would have made explicit that the component parts of this bill all fit together, in pari materia, so to speak, such that removing any one part would defeat the intended purpose of the bill.

My amendment would make very clear the congressional intent that this bill is so delicately crafted, that it is ``all or nothing.''

Each of these provisions would be rendered meaningless if any of the remaining parts is invalidated.

This has been a long standing principle of statutory construction, going back at least to 1936, when the Supreme Court stated in Carter v. Carter Coal Co., 298 U.S. 238, 312 (1936):

[T]he presumption is that the Legislature intends an act to be effective as an entirety--that is to say, the rule is against the mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it.

This presumption becomes conclusive when Congress makes its intention clear, see Carter v. Carter Coal Co., 298 U.S. at 312, by including a non-severability clause in the statute.

My amendment would have done just that.

Had these amendments been made in order and approved, the bill before would be improved markedly. It is my hope that there will be additional opportunities to improve this legislation as it moves forward. The Keystone Pipeline should be built following all the necessary rules and laws that protect the American people.

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Ms. JACKSON LEE. I thank the respective authors of this legislation because I know that their intent is a purposeful intent.

I have made public statements that I believe that moving forward with the right approach, ensuring that the necessary protections are in place, the necessary environmental protections are in place and the permitting is in place, will create an enormous number of jobs. In fact, I opposed the rule because I've offered amendments that would provide opportunities for minority contractors, women-owned contractors, opportunities for the recruitment of a new generation of workers in the energy industry, which I thought would be a contributing factor to this legislation.

I offer a very simple amendment that has nothing to do with stopping any aspect of the construction. I would hope, however, that the regular order would proceed with the State Department's permitting process and the President's approval, but my amendment does not speak to that. My amendment is an amendment that seeks to simply be fair, Mr. Chairman. My amendment is simple and straightforward.

It extends the time period for filing a claim arising under the act from 60 days to 1 year after the date of the decision or action giving rise to the claim. This amendment is especially needed because H.R. 3, the underlying bill, vests exclusive jurisdiction over any and all claims arising under the act in a single court, the U.S. Court of Appeals for the District of Columbia, which is thousands of miles from many of those who may be impacted.

Think about that. The Keystone pipeline is proposed to run from Alberta, Canada, through the great States of North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and my State of Texas, all the way to the gulf. Maybe there is some collateral impact as well, but the only court in the country authorized to hear the claims of the residents of any of these States who seek justice for a legally cognizable claim or injury is located more than 1,000 miles away from their homes.

Mr. Chairman, they cannot go to a district court. They cannot go to the southern district. This will impose an undue hardship and a financial burden on ordinary Americans seeking justice. Instead, the bill requires them to find and retain a high-priced D.C. lawyer whom they don't know and may have never met to represent their interests in a court far, far away.

Another reason for extending the time period in which to file a claim--remember, this is after the passage and construction of this particular entity--from 60 days to 1 year is that, by lodging jurisdiction in the D.C. Court of Appeals, the burden of proof and persuasion is shifted from the governmental and corporate actors involved to the homeowners, small businesses, and individuals bringing legal rights. Grandma and Grandpa and all of those individuals will have to travel 1,000 miles.

This is because the burden that must be shouldered by a plaintiff is very steep. To challenge factual evidentiary determinations made in an Environmental Impact Statement, for example, a plaintiff must demonstrate that they're not supported by substantial evidence in the record considered as a whole. To meet the standard, plaintiffs will have to retain experts, locate and prepare witnesses, and gather and review documentary materials.

I hope in a bipartisan way we can get to where all of us would like to be, ensuring that we have a constructive project for all Americans.

With that, I reserve the balance of my time.

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Ms. JACKSON LEE. Mr. Chair, again, I would have hoped, having worked with the gentleman from Nebraska, the proponent of this legislation, that we would continue to work on a bipartisan pathway.

This amendment is to relieve the burden on some of the very people many of us represent, and that is, of course, those individual claimants who happen to be in faraway places who now have to go to the D.C. Court of Appeals and to actually bear the burden of responsibility dealing with the fact that when you challenge the factual evidentiary determinations made in an EIS statement, an Environmental Impact Statement, for example, the plaintiff must demonstrate that they're not supported by substantial evidence in the record considered as a whole.

That's an extreme burden that will have to be carried by plaintiffs. They'll have to secure lawyers here in the D.C. area. They'll have to travel here, bear extra expenses. It will be necessary to get experts, locate and prepare witnesses, relocate themselves, and gather and review documentary materials. I would suggest that it is obviously a stress and a burden.

In section 4, this bill has no right to judicial review. So in essence, it means that you have one track to go in for a number of issues that might come forward. I am concerned that that would be the case. And for that reason I think that our amendment has the strength of purpose that is necessary.

Let me also add again, as I want to be very clear, why should we burden the individual plaintiffs, Mr. Chairman, with financial burdens that are excessive? My amendment gives them a fair amount of time to get a response and to participate in this process.

I ask my colleagues to support the amendment, and I yield back the balance of my time.

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