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March 11, 2020 by Sandra Zellmer, Christine Klein

Still Flooding After All These Years

Originally published by NYU Press. Reprinted with permission.

The flood season is upon us once again. Beginning in February, parts of Mississippi and Tennessee were deluged by floods described as "historic," "unprecedented," even "Shakespearean." At the same time, Midwestern farmers are still reeling from the torrential rains of 2019 that destroyed billions of dollars' worth of crops and equipment, while wondering whether their water-ravaged farmland can ever be put back into production. All this while the Houston area continues to recover from three so-called "500-year floods" in as many years, back-to-back in 2015, 2016, and, most notably, Hurricane Harvey in 2017.

As one tragedy follows another, they barely qualify as national news anymore. Instead, record-breaking floods and destruction are becoming commonplace. Why do the sequels barely warrant top billing? How have our national policies failed us, and why do they continue to fail us?

In Mississippi River Tragedies: A Century of Unnatural Disasters, we traced the historic foundations of federal flood control policy: a wobbly three-legged stool consisting of federal dams and levees, disaster relief, and flood insurance—all heavily subsidized by federal taxpayers. Since the book's publication in 2014, some problematic policies and habits have remained stubbornly …

March 28, 2019 by Sandra Zellmer
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The Supreme Court ruled unanimously this week in favor of Alaskan John Sturgeon, who waged a 12-year battle against the National Park Service over its ban on hovercraft in park preserves. As a result of the decision, Sturgeon can once again "rev up his hovercraft in search of moose" on the Nation River in the Yukon Charley Preserve. This is the second time this fight has come before the Supreme Court. On one hand, it involves important legal issues affecting public lands, federalism, and water rights. But on the other, it is a narrow case over the special circumstances of federal lands in Alaska.

As a quick recap, Sturgeon was navigating the Nation River on his hovercraft in 2007 when Park Service officials stopped him and …

Nov. 6, 2018 by Sandra Zellmer
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the opinion in this case.

Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.

This is the second time the justices have had to wrestle with a section of ANILCA entitled "maps," situated within a title that specifies Congress' purposes, provides definitions and addresses boundary maps and land management status …

Oct. 31, 2018 by Sandra Zellmer
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This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the oral arguments in this case and here to read her analysis of the opinion.

“Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once again consider whether a form of transportation unknown to most people outside of Alaska – a hovercraft (an amphibious vehicle that glides over land and water) – can be used in the Yukon-Charley Rivers National Preserve conservation system unit (CSU). Why, you may ask, would the court bother (twice) with such an arcane and …

May 4, 2017 by Sandra Zellmer
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Professors Michelle Bryan and Monte Mills of the University of Montana co-authored this article with Center for Progressive Reform Member Scholar and University of Nebraska—Lincoln Professor Sandra Zellmer. It originally appeared in The Conversation on May 3, 2017.

In the few days since President Trump issued his Executive Order on National Monuments, many legal scholars have questioned the legality of his actions under the Antiquities Act. Indeed, if the president attempts to revoke or downsize a monument designation, such actions would be on shaky, if any, legal ground.

But beyond President Trump's dubious reading of the Antiquities Act, his threats also implicate a suite of other cultural and ecological laws implemented within our national monuments.

By opening a Department of Interior review of all large-scale monuments designated since 1996, Trump places at risk two decades' worth of financial and human investment in areas such as …

Jan. 15, 2015 by Sandra Zellmer
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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 …

Feb. 20, 2014 by Sandra Zellmer
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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 § 20 to play the lead role in approving the pipeline's route.  The PSC was created in the late 1800's to prevent precisely this kind of overreaching by politicians who were inclined to grant political favors to powerful railroad executives who wanted to expand their routes through private property. "If such abandonment or abolition of the PSC's regulatory control were permitted, the protection …

Aug. 12, 2013 by Sandra Zellmer
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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 take into account a revised pipeline route through Nebraska (around 200 miles of the pipeline’s 1,179-mile route would be situated there).

The draft EIS concluded that Alberta’s oil sands would be developed with or without Keystone XL; as such, it indicated that the pipeline’s impacts on greenhouse gas emissions and climate change would be minimal. The Environmental …

June 14, 2013 by Sandra Zellmer
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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 is the so-called “States’ Water Rights Act” Amendment.  This amendment would bar the Corps from charging a storage fee for “surplus water” drawn from Missouri River reservoirs.  For the purposes of Section 6 of the 1944 Flood Control Act, which governs Missouri River operations, “surplus water” is defined as water stored in a Corps of Engineers reservoir that is not required because the congressionally …

April 23, 2013 by Sandra Zellmer
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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 its decision to play hide and seek and now promises to post them all on a website.

Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of …

CPR HOMEPAGE
More on CPR's Work & Scholars.
March 11, 2020

Still Flooding After All These Years

March 28, 2019

Opinion Analysis: The Justices Wish Sturgeon 'Good Hunting' in Sturgeon v. Frost

Nov. 6, 2018

Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells

Oct. 31, 2018

Argument Preview: Can a Hovercraft Navigate the Shoals of Yukon-Charley?

May 4, 2017

Trump's Plan to Dismantle National Monuments Comes with Steep Cultural and Ecological Costs

Jan. 15, 2015

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

Feb. 20, 2014

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