The South Dakota Public Utilities Commission decided to let TransCanada gamble on a Big Oil Republican winning the White House this year. The PUC voted unanimously yesterday to renew TransCanada’s permit to build the Keystone XL pipeline across West River. Even though the President of the United States just said two months ago that Keystone XL would not serve the national interest of the United States, the PUC ruled that opponents didn’t prove that TransCanada can’t meet the fifty conditions of its 2010 permit, so South Dakota yet opes its lap to these foreign petroleum profiteers’ penetration.
Interestingly, the words “national interest” appear nowhere in the fifty conditions.
I can understand pipeline opponents’ frustration at the idea that the PUC would not apply the burden of proof to the foreign company seeking to tear up land and put South Dakota’s water at permanent risk. I can understand frustration at the notion that the PUC would not reconsider the findings of fact from its 2009–2010 permitting process that have been significantly altered by changes in the global economy. But if those are the procedural rules, then we’ve got to play by them, and PUC chairman Chris Nelson says opponents failed to clear that bar. Commissioner Nelson gave the most credit to an argument from Gary F. Dorr, a Nez Perce tribal member from Idaho, who argued that TransCanada is not satisfying Condition 1, on compliance with state and federal laws, because the Fort Laramie Treaty of 1868, which is still on the books, requires TransCanada to get permission from the tribes to cross the territory formerly known as the Great Sioux Nation… and there’s no way the tribes would let TransCanada lay its black snake across Indian Country.
We know TransCanada has had bad welds and corrosion on other projects, which ought to call into question TransCanada’s ability to comply with Condition 1 on compliance with state and federal regs on pipeline construction and operation. Last month (after the PUC heard intervenor testimony) the U.S. Pipeline and Hazardous Materials Safety Administration said that corrosion on Keystone 1 may warrant $187,200 in fines:
In its letter, the agency alleged that the company had failed to adequately protect the pipeline from rust within a reasonable time following its construction and did not sufficiently inspect it, as required by safety regulations.
“TransCanada’s records indicate deficiencies that remained uncorrected for multiple years,” said the notice, dated Nov. 20, 2015, and signed by Allan Beshore, a regional director from PHMSA.
The notice also alleged that between 2010 and 2012, TransCanada had failed to do 51 required tests to see if its rust protection system was working on the Keystone pipeline.
“TransCanada provided no rationale for the failure to conduct and record the required testing,” said the notice, delivered by registered mail to Vern Meier, the president of TransCanada Oil Pipeline Operations in Houston, Texas [Mike De Souza, “TransCanada Failed to Operate Keystone Safely, U.S. Regulator Alleges,” National Observer, 2015.12.11].
The PUC received evidence about TransCanada’s failure to promptly and properly restore land and grasses on its first Keystone pipeline across East River, which would call into question TransCanada’s ability to fulfill Condition 16 on land restoration.
But apparently opponents didn’t wage those arguments and others hard enough and directly enough against the specific fifty conditions to block the PUC’s re-uppance of the Keystone XL permit.
This discussion is mostly moot, of course, unless Republicans keep Donald Trump or Ted Cruz from driving the party clown car into the ditch and nominate someone who can reverse the current odds favoring Democrats winning the White House this year.
Update 13:47 CST: Then again, TransCanada may not need to hang its hopes on the 2016 Presidential election. I checked with Commissioner Nelson on how long this recertified permit runs. Commissioner Nelson pointed to SDCL 49-41B-27, which requires utilities that don’t act on their permits within four years to certify that their projects still meet the permit conditions. Neither that statute nor any other in the chapter on energy conversion and transmission facilities says anything about such permits expiring. TransCanada’s permit to build Keystone XL across South Dakota would appear to be valid in perpetuity. So TransCanada can weather the GOP’s 2016 debacle, play it cool for a couple decades, then get federal approval from President Venhuizen when he finally recaptures the White House for the new Restoration Republicans in 2044.
This is always a concern when states like ours make the commitment to allow this to continue. ALEC shows its ugly melon http://www.dailykos.com/story/2015/1/22/1359486/-TPP-Keystone-XL-Fast-Tracking-and-ALEC
To paraphrase, and expand on Charlie Pierce (Esquire Magazine), the SD Republican Party has made it clear that it believes a “continent-spanning death-funnel aimed at transporting the world’s dirtiest fossil fuel from the poisoned moonscape of Alberta down the spine of North America to Texas, where what already hasn’t spilled out and killed ducks and bunny rabbits — and the agricultural economy of half the country — will be put on ships and sent out to the rest of the world” is a vote generating idea.
When the ground rules were being laid for this hearing the PUC decided that discovery would be allowed on the 50 conditions plus 30 of the 115 Findings of Fact. Why only 30 of the FOF? Because TransCanda had determined that only those 30 had changed in the previous months and the PUC was willing to accept TransCanada’s assertion. TransCanada was basically allowed to determine which Findings of Fact would be allowed in discovery. Half way through the hearing the PUC commissioners decided that only testimony relevant to the 50 conditions would be allowed, no longer would testimony be allowed on the 30 FOF’s. As an intervenor I had researched my testimony on the need for the pipeline and on the taxes that TransCanada had promised, both Findings of Fact. My testimony was no longer relevant so I did not present it.
Another matter that I find interesting is that the PUC staff has the ability to pay for expert witnesses to appear. They payed for a lot of witnesses from out of state that were there to bolster TransCanada’s case. By the time that about half of the PUC witnesses had appeared the opposition lawyers had the PUC staff attorney so flustered that she decided not to call the rest of them.
While the PUC people treated all of us with respect and were quite patient with us lay intervenors there were many times that I felt that the commissioners may be in a little over their head. The commissioners are asked to interpret South Dakota Codified Law and to my knowledge none of them have any legal training. I look for the PUC permit decision to be challenged in a court of law.
We elect and appoint moron minions. So embarrassing to be SD native.
http://www.theglobeandmail.com/report-on-business/transcanada-files-lawsuit-over-keystone-pipeline-rejection/article28038526/
timing…timing ….timing… http://www.cnbc.com/2016/01/06/transcanada-takes-legal-action-against-us-for-denying-keystone-xl.html
Maybe some nutjob judge will decide Trans-Canada suffers from affluenza and should be allowed their pipeline because they can’t handle rejection and will be irreperably harmed if they aren’t allowed to irreperably harm our environment,via the 14 th Amendment.
Yesterday the PUC approves TransCanada’s pipeline permit under the premise that TransCanada has told them that they still plan on building the Keystone XL. Today TransCanada announces that they are suing the United States for stopping the KXL. I say to the three PUC commissioners, “you have been flim flammed”.
Larry, Bret—wow! That’s news! TransCanada trying to tell us what our Constitution says our President can do!
Paul, could the lawsuit really be a way to force the government to settle and reverse its rejection of the application? If not, then you have identified a fine contradiction.
Cory, Denise Ross talked about this today on Bill Janklow’s idea of public radio. The PUC really had no choice since TransCanada would have sued them, too.
Gary Hanson, showed his true colors here.Nelson and Feigen are what I expected true republicans.
Cory, maybe you have seen the Globe and Mail article out of Calgary. TransCanada isn’t just suing for the $3.1 billion that they claim they have already spent they are suing for $15 billion. I don’t think that either amount will cause President Obama to fold. Maybe Bret and I should sue TC for a similar amount. Mental stress and all. That would make us the sewer and them the souiee.
My bad, I see that larry has already provided that link to the Globe and Mail. It’s a good article.
When TransCanada and Dakota Access both stored their pipe for the projects in the area a year or two in advance of getting PUC permit approval, it was a clear message that their bought and paid for PUC commissioners would come through for them. TransCanada, the Koch Brothers, and ALEC got their return on their investment. Anyone who thought that these three oil puppet commissioners would listen to facts and render a just decision is delusional. Please, Dems, get some serious candidates to run against these three frauds.
Actually, the prevention of the Keystone pipeline is in our national interest. Unless you are one of those Republican Senators like Thune, who wants the Keystone pipeline so we can facilitate the shipment of toxic Canadian tar sand oil to a major geopolitical competitor and future super power like China.
TransCanada survived the SDPUC process largely because South Dakota water law is incomprehensible. Little wonder Thune, et al. want to keep EPA and the corps out of it: their donors insist.
That lawsuit goes nowhere. If I apply for a building permit, then buy and stockpile lumber and shingles and give contractors deposits and advertise for renters in my new apartment building before I hear back from the city council, I don’t get to sue the city for my losses when the city refuses me the permit because my plan would violate zoning regs. I get laughed at for assuming the city would automatically approve my permit and spending money before I had my permit in hand.
The U.S. has every right to allow or deny international infrastructure projects to cross its border. The U.S. has a sovereign right to protect its national interest. The U.S. never issued TransCanada any promise that it would issue the permit or that every state along the route would do so. TransCanada showed that it knew the permit was not certain by not sticking shovels and pipe in the dirt.
But then there’s that NAFTA thing. Someone call Steve Sibson, see if he can give us a read on the globalist cabal’s approach to this issue.
Then there is this regarding the TPP. Thune and many other republicans love this piece of garbage, but it is a clear and present danger to our citizens. http://calgaryherald.com/business/energy/u-s-opponents-of-trans-pacific-partnership-say-keystone-suit-illustrates-threat-from-trade-deal
Almost all permits and licenses have an expiration date if they are not exercised.
Question is why is this not the case.
Commissioner Hanson demonstrated his alignment with the Williams pipeline MAJOR leak north of Sioux Falls 20+ yrs ago. Then it appeared there may have been hidden benefits for some people.
He lost trust of those other people on the committee to rectify that situation.
Anyone know what Paula Hawks stance is on the TPP or the pipeline itself?
Sibby is coveting that clarion call to action from you,Cory.
Jerry, Hawks said the following to Santema about Keystone XL in August at the Brown County Fair:
Bobby, if you can find the statute that imposes an expiration date on a PUC pipeline permit, let me and Commissioner Nelson know!
Thanks Cory, now if she could call out NOem on the TPP that would again put the Keystone XL back in the saddle, that would be a good thing.
PUC website makes it look like there’s no longer a Rounds on staff, at least as far as I can tell.
Jerry, is TransCanada’s lawsuit a chance to win some Keystone XL supporters over to Paula’s side? Can Hawks make hay of a position that says, “Whether we wanted the pipeline or not, we can all agree that a foreign company shouldn’t be able to force American taxpayers to either accept their project on their land or pay TransCanada for not building it”? Can we find folks who think the pipeline was a good idea but not TPP and NAFTA?
http://legis.sd.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=49-41B-27
our Puc showed their true colors very dissappointed in Hanson though for voting for it, but it now shows
Cory and Mike
Now that the PUC has certified the permit what happens if four years from now TransCanada has not started construction? Will another docket be opened just like the one just completed. I talked to former chief counsel for the PUC, John Smith, and he says SDCL doesn’t address that. Under current statute I think that TransCanada could drag this out indefinitely. SDCL 49-41B, the chapter addressing pipelines, is somewhat vague.
Bret, Brian Rounds has just recently left the PUC staff.
Larry i’m yer huckleberry for h2o
Ed-write ann and suzi at sddp and lets talk this up and draft a candidate. This Is The Fight Of OUR Lives
Paul-while looking through different articles on KXL,I noticed your name popped up quite frequently. Even though I do n ot live in your state,thank you for your time and efforts to prevent these nightmares from becoming reality.
Leslie- I’m your huckleberry originally was “I’m your gooseberry” from the A B Guthrie-Pulitzer Prize winning novel- The Way West from 1949. That saying was funnier in the original format. Just saying. :)
vapor, ice, and liquid is the one true trinity, leslie.
mike, thanks for your comment. Back in the spring of 2008 TransCanada came to me and told me that they were going to build a pipeline across my land in central South Dakota and that if I didn’t sign their easement then they would just use the power of eminent domain. That arrogant attitude immediately turned me against them. Their filing a $15 billion lawsuit against the United States shows that this arrogance has gotten worse. I hope that this filing of a lawsuit shows people what we have been subjected to.
leslie and mike
Maybe we should bring back the “I’m your huckleberry” saying. I see that upon googling it that it is sometimes interpreted as “I’m the man for the job”.
“You’re a daisy if you do” as “you’re a good man if you do”. What would we do without google?
If you haven’t seen it, TransCanada’s FAQ about the lawsuit is high comedy
http://keystone-xl.com/TransCanada-challenges-Keystone-XL-denial/