South Dakota legal wrangling adds to Keystone headaches
TransCanada Corp. was expecting South Dakota’s re-certification of the Keystone XL pipeline would be a routine procedure to determine that the project was still relevant. After all, the permit for construction of the 500-kilometre portion of the Alberta-to-Nebraska project traversing South Dakota had sailed through the South Dakota regulator’s desk five years before without much opposition.
Instead, the process has dragged on for more than eight months, as environmental, Native American and citizen groups vehemently opposed to the pipeline attempt to forestall the process.
On Thursday, the South Dakota Public Utilities Commission finally set a date — July 27 — for a hearing for the re-certification process, which will see as many as 40 interveners, most of them environmental groups.
“Normally, we issue a siting permit and construction begins,” Chris Nelson, chairman of the commission, said Wednesday, the day before the hearing. “So coming back four years later (when the permit expired) is not really something we have dealt with before.”
The commission had initially authorized the Alberta-to-Nebraska crude oil conduit in June 2010, but state rules dictate permits must be re-authorized if construction has not begun within four years of their issuance.
The $10-billion project has been under review by the State Department for the past six years and despite five largely favourable environmental assessment reports have yet to secure the presidential permit from Barack Obama who has the final say as the project crosses an international border.
The unprecedented legal wrangles are now routine for TransCanada.
“Whether or not we are surprised that this hearing has taken a life of its own — the answer is no,” TransCanada spokesman Mark Cooper said. “We learned long ago that opponents of modern infrastructure projects will use whatever delay tactic they can to slow our project.”
In December 2014, the Yankton Sioux Tribe filed a motion, supported by several parties, that the 30 changed conditions TransCanada submitted along with its application “constituted a new pipeline and that the entire permit process should have to start over.”
TransCanada was granted a motion to limit the scope of discovery while Yankton’s motion was denied.
The big question is whether the U.S. State Department, which is currently reviewing the 830,000-barrel per day project and could conceivably make a recommendation to President Barack Obama for a final decision any day now, may hold back its verdict until South Dakota’s legal wrinkles are ironed out. Department officials did not respond to a request for comment.
“This is not a reapplication for a permit,” Cooper insists. “This is satisfying that the conditions on which the permit was approved was still applicable. These state processes are independent of presidential permit processes.”
But last year, the State Department halted its work to accommodate a legal challenge to the 1,900-kilometre pipeline in the Nebraska Supreme Court. The company hopes to complete the project two years after the presidential permit.
The new hearing date comes more than two months after it was originally proposed and certainly months after TransCanada’s submission last September. The company had initially hoped to wrap up the process by the third quarter, but with hearing starting only in late July, the process may be pushed further into 2015.
Any court proceedings started by intervening parties unhappy with hearing results could possibly push the process into 2016.