As our tribal neighbors vow to continue their fight against the Dakota Access Pipeline, the Yankton Sioux and Cheyenne River Sioux tribes, plus Dakota Rural Access and a whole bunch of other friendly troublemakers, are lobbing a court grenade at the mostly dead Keystone XL pipeline. The tribes, DRA, and other activists filed a challenge in the South Dakota Sixth Circuit this month calling for the South Dakota Public Utilities Commission to reopen its Keystone XL docket.
The appellants contend that evidence revealed by the Freeman spill on the Keystone pipeline last April is material to the PUC’s continuing permission for TransCanada to lay pipe in South Dakota:
Appellants proffer the new evidence, that relates to the nature, extent, cause, and environmental damage from the recent spill, is relevant to the history of TransCanada’s spills and near spills due to non-compliance with its own construction plans, violations of PHMSA regulations, and permit conditions. Such evidence constitutes additional new, but non-cumulative evidence relevant to TransCanada’s continuing compliance with at least PUC Original Permit Conditions 1, 7, 31, and 36-38. The new evidence will further enhance evidence presented in the PUC hearing record of issues related to compliance failures involving design, construction, inspection, spill detection, and emergency response plans for the KXL Pipeline, which were said to be virtually identical to those involved with the Keystone Pipeline. Such evidence further corroborates the hearing testimony of former TransCanada engineer and whistle-blower Evan Vokes regarding safety issues involving critical welds. It also constitutes material impeachment evidence impacting the credibility of TransCanada witnesses and their testimony that was relied upon by the PUC in making its Final Decision [Dakota Rural Action, Yankton Sioux Tribe, Cheyenne River Sioux Tribe, Inter-Tribal Council on Utilities Policy et al., “Joint Motion for Leave to Present Additional Evidence/Remand and Motion for Stay of Proceedings,” in re Public Utilities Commission Docket HP14-001, South Dakota Sixth Judicial Circuit, 2016.07.18].
The PUC recertified TransCanada’s permit to build Keystone XL last January, despite the death of the that tar sands oil pipeline at the hands of President Obama, innovation, and a collapsing business case. Keystone XL will likely never be built; TransCanada and its environmentalist opponents have turned their attention to Energy East, a plan to pipe tar sands oil east from Alberta to the Atlantic. But reopening the Keystone XL docket would give the PUC a chance to discuss the Freeman spill and TransCanada’s substandard steel and have that information on the record for reference in future pipeline hearings.