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Providing for Consideration of H.R. 3, Northern Route Approval Act

Floor Speech

Location: Washington, DC


Ms. JACKSON LEE. Let me thank the gentleman from Colorado for his leadership, and I hope that we will continue this debate with my good friends on the other side of the aisle on this issue.

It is just very challenging to have a structure of legislation that deems approval and does not do what I think all of us want it to do, which is to get moving to provide these jobs and to do what America is uniquely noted for--that we cross the T's and dot the I's, that we make sure that the environmental concerns are answered. I rise on this rule to make several points.

Mr. Rush and I offered an amendment to strike section 4. In this bill, it does not allow for judicial review. It allows for people in Kentucky or in Arizona or in Texas to come to the District of Columbia to file their cases in the Court of Appeals. As a member of the Judiciary Committee, I raised concerns about that. My bill struck the provision that eliminated judicial review so that some burdened individual citizen couldn't just go into his Federal district court.

I had another amendment that is very near and dear to me that wants to give new life to the jobs and businesses in the energy industry, which is to create a report to ensure that women, small businesses, minority-owned businesses get their fair shake and that we have an overall commitment to hiring the new young graduates who are coming out, many of them from the diverse community, which we see the energy industry is still seeking to outreach because there is a great need for increased diversity in many of these fields. Amendment No. 2 would have added a nonseverability clause so that, if anything were found to be unconstitutional, we would go back to the drawing board for this entire bill.

Again, to have a major initiative be deemed approved, the Secretary of State authority deemed approved, the Presidential authority deemed approved, this is something that, my colleagues, we should work together on.

I would finally suggest that I hope my colleagues will support my amendment on extending to 1 year the period for filing. Let's work together and make sure we've got something that will create jobs.


Ms. JACKSON LEE. Mr. Speaker, I thank the gentleman for yielding. I thank Chairman SESSIONS and the Members of the Rules Committee for making in order my amendment that extends the time period for filing a claim arising under the Act from 60 days to 1 year.

Mr. Speaker, the Keystone XL Pipeline project raises several issues important to every Member of this House:

Energy production and independence.

Environmental protection and preservation.

Job creation.

Separation of powers and checks and balances.

Given the importance of these issues, I believe the House would have benefitted from a rule that provided for even more extensive and wide-ranging debate and that made more amendments in order.

For example, an amendment I offered jointly with Congressman RUSH, Jackson Lee Amendment #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 #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 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 #2 Amendment, 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.

For these reasons, I am opposed to the rule and cannot support it.

We can do better to create jobs, build the pipeline, and protect the environment. I will consider how to move forward.

Mr. Speaker, I have an amendment at the desk. It is Jackson Lee Amendment No. 1.

I thank the Members of the Rules Committee for making the amendment in order.

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. Circuit Court of Appeals for the District of Columbia.

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 of Mexico.

And the only court in the country authorized to hear the claims of any resident of any of these States who seeks justice for a legally cognizable injury is located more than 1,000 miles away from their homes.

This will impose undue hardship and financial burdens on ordinary Americans seeking justice. Instead, the bill requires them to find and retain a high-priced D.C. lawyer that they don't know and may have never met to represent their interests in a court in a far away land.

Another reason for extending the time period in which to file a claim from 60 days to 1 year is because 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 the legal action.

This is because the burden that must be shouldered by a plaintiff is very steep. To challenge factual and evidentiary determinations made in an Environmental Impact Statement, for example, a plaintiff must demonstrate that they are ``not supported by substantial evidence in the record considered as a whole.''

To meet that standard, plaintiffs will have to retain experts, locate and prepare witnesses, and gather and review documentary materials.

That takes time. And that is why my amendment is necessary.

The material previously referred to by Mr. Polis is as follows:

An Amendment to H. Res. 228 Offered By Mr. Polis of Colorado

At the end of the resolution, add the following new sections:

Sec. 2. Immediately upon adoption of this resolution the Speaker shall, pursuant to clause 2(b) of rule XVIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 2070) to protect consumers from price-gouging of gasoline and other fuels, and for other purposes. The first reading of the bill shall be dispensed with. All points of order against consideration of the bill are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce. After general debate the bill shall be considered for amendment under the five-minute rule. All points of order against provisions in the bill are waived. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. If the Committee of the Whole rises and reports that it has come to no resolution on the bill, then on the next legislative day the House shall, immediately after the third daily order of business under clause 1 of rule XIV, resolve into the Committee of the Whole for further consideration of the bill.

Sec. 3. Clause 1(c) of rule XIX shall not apply to the consideration of H.R. 2070.

The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous question on a special rule, is not merely a procedural vote. A vote against ordering the previous question is a vote against the Republican majority agenda and a vote to allow the Democratic minority to offer an alternative plan. It is a vote about what the House should be debating.

Mr. Clarence Cannon's Precedents of the House of Representatives (VI, 308-311), describes the vote on the previous question on the rule as ``a motion to direct or control the consideration of the subject before the House being made by the Member in charge.'' To defeat the previous question is to give the opposition a chance to decide the subject before the House. Cannon cites the Speaker's ruling of January 13, 1920, to the effect that ``the refusal of the House to sustain the demand for the previous question passes the control of the resolution to the opposition'' in order to offer an amendment. On March 15, 1909, a member of the majority party offered a rule resolution. The House defeated the previous question and a member of the opposition rose to a parliamentary inquiry, asking who was entitled to recognition. Speaker Joseph G. Cannon (R-Illinois) said: ``The previous question having been refused, the gentleman from New York, Mr. Fitzgerald, who had asked the gentleman to yield to him for an amendment, is entitled to the first recognition.''

The Republican majority may say ``the vote on the previous question is simply a vote on whether to proceed to an immediate vote on adopting the resolution ..... [and] has no substantive legislative or policy implications whatsoever.'' But that is not what they have always said. Listen to the Republican Leadership Manual on the Legislative Process in the United States House of Representatives, (6th edition, page 135). Here's how the Republicans describe the previous question vote in their own manual: ``Although it is generally not possible to amend the rule because the majority Member controlling the time will not yield for the purpose of offering an amendment, the same result may be achieved by voting down the previous question on the rule....... When the motion for the previous question is defeated, control of the time passes to the Member who led the opposition to ordering the previous question. That Member, because he then controls the time, may offer an amendment to the rule, or yield for the purpose of amendment.''

In Deschler's Procedure in the U.S. House of Representatives, the subchapter titled ``Amending Special Rules'' states: ``a refusal to order the previous question on such a rule [a special rule reported from the Committee on Rules] opens the resolution to amendment and further debate.'' (Chapter 21, section 21.2) Section 21.3 continues: ``Upon rejection of the motion for the previous question on a resolution reported from the Committee on Rules, control shifts to the Member leading the opposition to the previous question, who may offer a proper amendment or motion and who controls the time for debate thereon.''

Clearly, the vote on the previous question on a rule does have substantive policy implications. It is one of the only available tools for those who oppose the Republican majority's agenda and allows those with alternative views the opportunity to offer an alternative plan.


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