Keystone XL Permit Hearing Concludes After Nine Contentious Days in South Dakota

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TransCanadaโ€™s days of having its pipeline permit requests rubber-stamped are long over. A nine-day hearing to reconsider its Keystone XL permit through South Dakota provedย that.ย 

Yet many left the hearing in Pierre, South Dakota, wondering if the proceedingsย were merely aย formality.

Only two of the three South Dakota Public Utility Commissioners (PUC) tasked to decide on the fate of TransCanadaโ€™s Keystone XL permit attended theย hearing. Theย missing commissioner plans to base her decision on the transcripts that she will examine during her recovery from a medical procedure that kept her away from theย hearing.ย 

PUC Commissioner Gary Hanson was photographed sleeping during testimony by TransCanada whistleblower Evan Vokes. At least that is what it looked like in a picture posted on social media sites. Not long after the photo was posted, Hanson interrupted the hearings to state that he didn’t think posting the photo was fair. He explained that he wasnโ€™t sleeping. He was on pain medication, andย was resting. (Audio of relevant testimony (1:23:00ย โ€“ 1:39:00ย onย Aug.3)

Even before the hearing began, lawyers for the intervenors questioned the PUCโ€™s impartiality. Many who wanted to testify against the permit being recertified were unable to do so because they failed to meet deadlines for filing pre-trial testimony. And then much of the evidence those who did pre-file their testimony wanted to cite was precluded from theย proceedings.

During the hearing, the intervenors questioned TransCanada on everything from its shoddy construction record, to the companyโ€™s inability to gain permission from Native America tribes to enter theirย territory.ย 

Sue Sibson, a South Dakotan rancher and one of the intervenors, presented evidence showing the destruction to her familyโ€™s land left in the wake of TransCanadaโ€™s installation of the Keystone 1 Pipeline. Sibson also testified that the company has failed to fix the problems even yearsย after.ย 

Over the objection of TransCanadaโ€™s lawyers, Vokes โ€” described as TransCanadaโ€™s most hated former employee by Dakota Rural Action attorney Robin Martinez โ€” testified about some of the past projects he worked on that experienced significantย problems.

Vokes, however, was prohibited from entering into evidence most of the documents that back up his testimony.ย These included photographic evidenceย he shot in Texas in 2013 during his own investigation into allegations of code compliance issues that took place along the Keystone XLโ€™s southern route, now known as theย Gulf Coastย Pipeline.

Jim White, one of TransCanadaโ€™s lawyers, grilled Vokes about his motives for being at the hearing and for helping the intervenors throughout the proceedings. Vokes explained that he felt it was his moral obligation to helpย those standing in the companyโ€™s way who donโ€™t have an engineering background.ย His testimony about the companyโ€™s history of breaking the rulesย and the education he provided to theย intervenors about pipeline engineers was free of charge, heย said.

Perhaps more damaging than Vokesโ€™ testimony was an internal report about a near failure of the Keystone 1 pipeline that TransCanada was unable to keepย confidential. The report revealed that in October 2012 part of the pipe experienced a 96.8% wall loss at a location dangerously closeย to the Mississippiย River.

Despite the damning report and a run-down of a few incidents that involved other TrasnCanada pipelines โ€” including the Bison pipeline in Wyoming that had a portion of the line ruptureย โ€” TransCanadaโ€™sย witnesses insisted that the Keystone XL pipeline would still be the safest pipeline everย built.ย 

During summation, the intervenors and their lawyers reiterated that TransCanada failedย to prove that the company had the ability to meet all of the conditions that are part of the original permit issued inย 2010.ย 

TransCanadaโ€™s legal teamย countered that some of that proof could only be presented after the pipeline was built, such as the companyโ€™s ability to restore property to its original condition. Intervenors pointed out that TransCanada has yet to do that for the Sibson family years after it installed a pipeline across theirย land.

Meanwhile, the entire process was called into question by Native Americanย intervenors.

โ€œThese procedures are illegal,โ€ Lone Eagle, a member of the Cheyenne River Sioux Tribe, said in her closing statement. โ€œThe commission has no authority to make any decisions onย tribalย land.โ€ย 

The intervenorsโ€™ challenge to TransCanada brings up the question about this project being classified as โ€œpublic useโ€ in the first place. Public use is a condition that entitles aย company to confiscate land under eminentย domain. Since the government has determined that the project is โ€œpublic use,โ€ thenย whyย is so much information that is critical to theย health and safety of the public withheld under the guise that it is โ€œproprietary,โ€ classified, and/orย confidential?

It will be months before the PUC renders its decision. Whatever the commission decides, the fight over the Keystone XL isnโ€™tย over. Both sides are expected to challenge theย verdict.ย 

Ultimately, if the PUC does not recertify the permit, TransCanadaโ€™s next move would be toย reapply.

However, if President Obama rejects the presidential permit Keystone XL needs to cross the Canadian border, the company could try to recoup its losses on the pipeline. A provision in the North American Free Trade Agreement allows the Canadian company to claim that it was discriminated against by the U.S. government. Whether it would go to such lengths isnโ€™t yetย clear.

At that point, perhaps, the Pipeline and Hazardous Materials Safety Administration (PHMSA) could set the record straight on TransCanadaโ€™s construction performance. Federal regulators are the best qualified to assess if TransCanada has the ability to follow mandated rules when buildingย pipelines.

Citing ongoing investigations of the Gulf Coast line and the Keystone 1 line, PHMSA declined to answer DeSmogโ€™s questions related to the pipelinesโ€™ construction orย operations.

Photo credit:ย  PUC Commissioners at the hearing on TransCanadaโ€™s Keystone XL permit in South Dakota. While whistleblower Evan Vokes testifies, Commissioner Hanson sleeps. ย Used withย permission.

Julie-Dermansky-022
Julie Dermansky is a multimedia reporter and artist based in New Orleans. She is an affiliate scholar at Rutgers Universityโ€™s Center for the Study of Genocide and Human Rights. Visit her website at www.jsdart.com.

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