Dakota Rural Action, Native allies, and other Earth-friendly neighbors go to Pierre today to show their opposition to the Keystone XL pipeline at a Public Utilities Commission hearing at the Capitol. DRA was out yesterday in Rapid City and Sioux Falls protesting the proposed Canadian tar sands pipeline:

Dakota Rural Action protests Keystone XL pipeline in Rapid City, South Dakota, 2015.01.05. (Photo from DRA)

Dakota Rural Action protests Keystone XL pipeline in Rapid City, South Dakota, 2015.01.05. (Photo from DRA)

Dakota Rural Action protests Keystone XL pipeline in Sioux Falls, South Dakota, 2015.01.05. (Photo from DRA)

Dakota Rural Action protests Keystone XL pipeline in Sioux Falls, South Dakota, 2015.01.05. (Photo from DRA)

My Orland neighbor Charlie Johnson goes to the Lake County Commission in Madison today to talk about his concerns about the proposed Dakota Access pipeline, which will cross his organic farm land against his will to carry Bakken crude to Illinois refiners. Commission chairman Scott Pedersen tells me that the only permits Dakota Access would have to submit to Lake County would be the boring permits to bore a path for the pipe under county roads. Dakota Access would also have to apply to the township boards to drill under township roads. That's the only local monkey wrench available to pipeline opponents; otherwise, Charlie and friends will have to go to the PUC to talk Dakota Access, just as DRA and friends are doing today on Keystone XL.

I'm glad Charlie and DRA are braving the cold to bring some heat on these pipelines. I wonder: why do so many other South Dakotans seem so eager to embrace environmentally dangerous projects that abrogate our property rights?

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NoKXL Rally, State Capitol, Pierre, South Dakota, January 6, 2015, 9:30 a.m.Session doesn't start until January 13, but dedicated citizens will be heating up the Capitol next week with a rally against the Keystone XL pipeline.

Oceti Rising and Dakota Rural Action are holding a #NoKXL Rally on Tuesday, January 6. They invite all interested citizens (and all citizens should be interested!) to the Public Utilities Commission hearing that starts at 9:30 a.m. in Room 413 of the Capitol. After hearing twelve electrical service territory boundary requests and Northwestern Energy's 20% rate hike request, the PUC will turn to the Yankton Sioux Tribe's motion to dismiss TransCanada's application for re-certification of its Keystone XL permit. As I reported on December 8, the Yankton Sioux Tribe contends that a "Tracking Table of Changes" submitted this fall by TransCanada with its application includes 30 modifications that render the proposed pipeline a different project from that which the PUC permitted in 2010. The tribe thus argues that TransCanada must apply for a whole new permit and submit to a whole new lengthy permit process.

On Monday, Dakota Rural Action and the Standing Rock and Cheyenne River Sioux Tribes filed motions to join the Yankton Sioux Tribe's motion, while the Rosebud Sioux Tribe filed a similar motion to dismiss. TransCanada contends the tribes' argument is illogical; things change, Keystone XL can still meet the permit conditions, and the tribes cite no law, statute, or case law to back their argument. PUC staff attorney Kristen N. Edwards recommends the PUC deny the motion to dismiss, saying that the significance of the listed project changes is better determined in discovery and the evidentiary hearing later this year.

Win or lose before the PUC Tuesday morning, the NoKXL Ralliers will have a prayer rally in the Capitol Rotunda after the hearing.

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Time to set up some protest camps in East River! The Public Utilities Commission has received the formal application from Houston-based Dakota Access to build a Bakken oil pipeline across eastern South Dakota. To kick off the permitting process, the PUC will hit the road, hosting four public meetings January 21 and 22 to give Dakota Access officials a chance to explain their project and take questions from those of us who will host their environmental hazard:

  • Bowdle, school gym, Wednesday, January 21, noon to 3 p.m.
  • Redfield, school auditorium, January 21, 6 p.m. to 9 p.m.
  • Iroquois, school gym, Thursday, January 22, 10:30 a.m. to 1:30 p.m.
  • Sioux Falls, Ramkota Roosevelt Room, January 22, 5:30 p.m. to 8:30 p.m.

Bob Mercer reports that South Dakotans unpersuaded by the company's pitch will have until February 513 to file with the PUC as official intervenors in the hearing. The PUC will set a date for the evidentiary hearing and rule on the pipeline application by December 14, 2015.*

Correction 14:41 CST: The original post got the intervenor filing and final decision dates wrong. I have corrected those dates and apologize for messing them up in the first place!

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This will be an exciting day for the South Dakota Public Utilities Commission. (I can picture Commissioner Chris Nelson springing out of bed every morning and saying exactly that.) On Tuesday, December 9, amidst seven major agenda items, the PUC gets to talk Keystone XL. Tuesday's hearing isn't the whole box of Timbits. Far from it: tomorrow, Commissioners Nelson, and Fiegen will only set rules for discovery and maybe time frame for future hearings.

TransCanada, the hopeful builder of the second tar sands pipeline that would cross our fair state, moved on October 30 to severely limit the scope of discovery—i.e., the topics on which opponents of the pipeline could demand information that they could use next year to argue against recertifying TransCanada's permit. For the high school policy debaters in the audience, TransCanada is essentially arguing, "No New in Two!" TransCanada contends that state law forbids today's opponents from bringing up or even demanding documents relating to arguments against the West River pipeline that weren't brought up in the original PUC permit process in 2009 and 2010. TransCanada says intervenors may not raise the following issues:

...the effects of the Project on the soils of the Sandhills; the effects of the Project on the Ogallala Aquifer and other streams, river, and waterbodies; whether the Project is in the national interest; whether the Department of State conducted sufficient consultation with interested Tribes under Section 106 of the National Historic Preservation Act; whether Keystone is entitled to exercise the right of eminent domain; and whether development of the oil sands in Canada harms the environment and contributes to levels of C02 in the atmosphere ["Keystone's Motion to Define the Scope of Discovery under SDCL 49--41B-27," SDPUC Docket, HP14-001, 2014.10.30].

TransCanada is understandably trying to speed the process, take ground from its opponents, and keep documents out of opponents' hands.

Pretty much everyone else at the show says TransCanada is wrong. The Cheyenne River Sioux Tribe dismantles TransCanada's motion, saying the Canadians get South Dakota case law wrong, offers no statutory basis for its narrow interpretation of the relevant permitting clause, and improperly reads that key statute in isolation in an attempt to throttle the properly broad authority of the PUC. Dakota Rural Action cites examples from other states that hold that the state confers no property right with a construction permit and the state is has the authority to conduct a broad review of an expired permit. The Rosebud Sioux Tribe argues that TransCanada is seeking a protection order that improperly applies the standards for permissibility at trial to permissibility in discovery: basically, the fact that information may not be allowed in the final hearing does not justify excluding such information from discovery.

Merry Christmas, Keystone XL opponents: the PUC staff seems to agree with you!

...[W]hile SDCL § 49-41B-27 limits the proceedings, it does not limit the scope of discovery. The fact that information is not admissible in the certification proceeding does not mean that it is not discoverable. “The purpose of discovery is to examine information that may lead to admissible evidence at trial [Kristen Edwards, PUC Attorney, response to TransCanada motion on discovery, PUC Docket HP14-001, 2014.12.01].

PUC attorney Edwards is waving the caution flag at Keystone XL opponents. They will still have to make their arguments at the full hearing next year that the PUC should consider risks to the Ogallala aquifer, lack of consultation with tribes, eminent domain, and other objections that were not raised in the first Keystone XL permit hearing. But if the PUC accepts its own attorney's reading of state law, it will tomorrow allow opponents to engage in much broader discovery than TransCanada wants.

Much broader discovery will require a much broader time frame. TransCanada wants a 14-week discovery process before hearings March 24–27, 2015. Dakota Rural Action says proper discovery and response will take 44 weeks, which would put the hearing sometime next October. On this issue, PUC staff is lining up with TransCanada, proposing the same March dates for the evidentiary hearing.

This discussion could all become academic if the Yankton Sioux Tribe prevails in its motion to dismiss. Attorney Thomasina Red Bird says that when TransCanada petitioned for recertification, in included a "Tracking Table of Changes" indicating changes in thirty of the findings of fact from the original permit. Red Bird and her Yankton clients say those changes make the project proposed in the 2014 petition different from the project approved by the PUC in 2010. The PUC, says Red Bird, cannot recertify a new project that has not been certified. Throw it out, start over!

I like that argument. I don't think the PUC will. We can hope for good fortune, but for now, a victory on broad discovery and a schedule long enough to make discovery feasible will be plenty.

The PUC will webcast tomorrow's meeting live, starting at 9:30 a.m. Central. Keystone XL is the last major action item on the agenda, so it's hard to say when that excitement will begin.

P.S.: Blogger Pat Powers ignores the details of tomorrow's hearing and whines the Big Oil party line that South Dakota should change its reasonably limited permits to perpetual licenses. Funny: I don't hear him saying that homeowners should get a permanent building permit, or that I should get a perpetual teaching license, or that Grandma ought to get a perpetual driver's license....

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The same lawyer who wrote up the SDGOP's feeble threat to sue TV stations for airing negative ads about Mike Rounds carried TransCanada's water yesterday in an effort to block citizens from fighting Keystone XL. And believe it or not, our Public Utilities Commissioners took the people's side!

43 individuals and organizations filed for intervenor status in the process under which the PUC will consider renewing TransCanada's permit to build the Keystone XL tar sands pipeline across West River. TransCanada sent Sioux Falls lawyer William Taylor to keep Bold Nebraska, 350.org, sixteen Nebraskans, and two Minnesota tribal members out of the process. At yesterday's party status hearing, Commissioners Gary Hanson, Chris Nelson, and Kristie Fiegen held the door open for every one of those interested parties:

Chairman Gary Hanson said the term “interested person” isn’t defined in the state laws governing PUC permitting. He said the laws also provide intervener status for environmental organizations.

“This is why we’re so lenient in granting party status, because the doors are so open on this,” Hanson told Taylor.

Commissioner Chris Nelson said he reads the laws to mean the commission has flexibility in deciding who can intervene, and Commissioner Kristie Fiegen said the Legislature “intentionally” wrote the law in broad language so the PUC could be inclusive [Bob Mercer, "43 Granted Intervener Status in Keystone XL Proceedings," Aberdeen American News, 2014.10.29].

Funny that TransCanada was arguing that non-South Dakotans can't participate in the South Dakota PUC's permitting process. By that logic, I would think the commissioners would have to bar the door to TransCanada as well, since none of their directors live in South Dakota. Luckily for them, Commissioners Hanson, Nelson, and Fiegen avoided that complication.

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TransCanada's application to renew its permit to build the Keystone XL pipeline is before the Public Utilities Commission, and one important deadline is already upon us. Citizens and organizations seeking party status—i.e., the right to participate in the hearing and raise some real heck—must file their application (no, you can't just show up at the hearing) with the PUC by this week Wednesday, October 15.

If you want to intervene officially in the Keystone XL hearing, grab this application for party status, fill it out, get a notary stamp on it, and get it to the PUC's office in Pierre by Wednesday. The mailing address is on the application; you can call the PUC at 605-773-3201 to find out about online filing options.

The form asks applicants to explain why they seek party status in no more than 1000 characters. John Harter does it in 39: "KXL is crossing my property if approved." Jane Kleeb of Bold Nebraska takes 330:

I work with Bold Nebraska and the Cowboy and Indian Alliance on issues regarding Keystone XL pipeline and the concerns around water, private property and soil. We would like to bring up issues, risks and evidence around soil type and the Sandhills that reach into the southern part of South Dakota as well as the Ogallala Aquifer [Jane Kleeb, on behalf of Bold Nebraska, application for party status, South Dakota Public Utilities Commission docket #HP14-001, 2014.10.09].

Eight intervenors have filed so far. The more the merrier!

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David Allen, Democratic candidate for Public Utilities Commission

David Allen, Democratic candidate for Public Utilities Commission

David Allen wants to replace Gary Hanson on the Public Utilities Commission. The Yankton electrical contractor expresses a healthy concern about corporate power in government and wants to focus on protecting South Dakotans' pocketbooks.

Allen, a Democrat, has run for office before in an unsuccessful bid for District 18 Senate in 2012 against incumbent Republican Senator Jean Hunhoff. Even though he lost that race 65–35, the concerns he heard from numerous constituents about simply making ends meet convinced him to stick with public service. Allen chose the PUC race this year because he sees a chance in that office to do immediate good for families and serve as a buffer against corporate power.

Keystone XL

One example of the corporate power Allen would fight is TransCanada's proposed Keystone XL pipeline. The PUC approved construction of that pipeline in 2010; that permit has lapsed, and the PUC that Allen would join must rehear and reapprove the Canadian company's proposal to lay pipe kittywampus across West River.

Allen strongly opposes Keystone XL, in large part because of eminent domain. Allen says it is "absolutely wrong" that South Dakota allows a foreign corporation to exercise eminent domain on our soil. He worries that the tar sands oil ("dilbit," as it is sometimes called) is highly corrosive and makes leaks inevitable. (A 2011 Alberta government study says chemistry doesn't make the oil more corrosive; more corrosion may come from the higher temperature and pressure needed to make the dilbit flow.) Allen notes that folks in British Columbia have rejected a tar sands pipeline*; he argues that we shouldn't host all the risks of Keystone XL "just because we are easily whored out," especially when Keystone XL would carry oil straight to the global export market and add not one drop for U.S. consumption.

Renewable Energy Big and Small

Allen would rather focus on developing more green energy. Pipeline jobs are temporary; renewable energy jobs, says Allen, offer more permanent economic gains. Demand will grow, meaning ongoing job opportunities for installing solar panels and wind turbines. Our vo-techs could both promote and capitalize on green energy by offering more training programs in the field and attracting more students. Allen thus sees renewable energy as a way to renew the youth population, offering them both practical education programs and good job opportunities.

Allen wants to see more small-scale energy production. He favors net metering, allowing homeowners to sell surplus power from their home energy generation back to their co-ops and utility companies. Allen recognizes that utilities need to charge a basic access cost to maintain the grid that transports homeowners' excess power and keeps them juiced on dark, windless nights, but he says homeowner power lessens the burden on the electrical grid and ultimately lowers costs for utilities.

*TransCanada can't go west, but maybe they'll throw a Hail Mary east! Bloomberg reports the Energy East pipeline proposal could take the tar sands 2,858 miles east to New Brunswick and make Keystone XL unnecessary.

Phones, Seeds, and Sioux Falls

Allen commented on an array of other issues during our conversation Monday. He says we should keep encouraging tower construction to reduce our cell phone dead zones. He'd like to see directories start including cell phone numbers. If the idea of increased publication of your cell phone number alarms you, note that Allen would also like to put more teeth in our do-not-call lists.

The fallout from the Anderson Seeds collapse still weighs on Allen's mind. He doesn't think the PUC and Legislature have taken enough action to protect farmers from getting stiffed by failing grain warehouses. Allen says he wants higher bonds to protect those farmer-investors. Likening the failure of Anderson Seeds to the bankruptcy of Northern Beef Packers and problems with South Dakota's EB-5 program, Allen says the PUC needs to offer more checks on power and oversight to protect South Dakotans from shaky and shady businesses.

Allen says his incumbent opponent, Commissioner Gary Hanson, leans a bit too much in favor of corporations. But Allen also throws the Sioux Falls flag on Hanson. He's uneasy with two-thirds of the PUC coming from Sioux Falls and thinks South Dakotans would be better served by diversifying the geography of the PUC members with some Yankton blood.

Voters have through November 4 to choose among Allen, Hanson, and the very quiet Constitution Party candidate Wayne Schmidt from Mobridge.

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TransCanada has put in motion the official process to renew its expired construction permit for the Keystone XL pipeline. On Monday, the Canadian pipeliner asked the South Dakota Public Utilities Commission to recertify its project.

While TransCanada and its dupes peddle their inflated jobs numbers, let's look at the original arguments the coaxed the PUC to approve the project in 2010. The PUC's Amended Final Decision greenlighting Keystone XL included the following findings of fact on the purpose of and demand for the project:

14. The purpose of the Project is to transport incremental crude oil production from the Western Canadian Sedimentary Basin ("WCSB") to meet growing demand by refineries and markets in the United States ("U.S."). This supply will serve to replace U.S. reliance on less stable and less reliable sources of offshore crude oil.

24. The transport of additional crude oil production from the WCSB is necessary to meet growing demand by refineries and markets in the U.S. The need for the project is dictated by a number of factors, including increasing WCSB crude oil supply combined with insufficient export pipeline capacity; increasing crude oil demand in the U.S. and decreasing domestic crude supply; the opportunity to reduce U.S. dependence on foreign off-shore oil through increased access to stable, secure Canadian crude oil supplies; and binding shipper commitments to utilize the Keystone Pipeline Project.

25. According to the U.S. Energy Information Administration ("EIA"), U.S. demand for petroleum products has increased by over 11 percent or 2,000,000 bpd over the past 10 years and is expected to increase further. The EIA estimates that total U.S. petroleum consumption will increases by approximately 10 million [sic] bpd over the next 10 years, representing average demand growth of about 100,000 [sic] bpd per year (EIA Annual Energy Outlook 2008).

26. At the same time, domestic U.S. crude oil supplies continue to decline. For example, over the past 10 years, domestic crude production in the United States has declined at an average rate of about 135,000 bpd per year, or 2% per year.... Crude and refined petroleum product imports into the U.S. have increased by over 3.3 million bpd over the past 10 years. In 2007, the U.S. imported over 13.4 million bpd of crude oil and petroleum products or over 60 percent of total U.S. petroleum product consumption. Canada is currently the largest supplier of imported crude oil and refined products to the U.S., supplying over 2.4 million bpd in 2007, representing over 11 percent of total U.S. petroleum product consumption (EIA 2007) [South Dakota Public Utilities Commission, Amended Final Decision and Order, TransCanada Keystone XL Pipeline application, 2010.06.29].

First let us note that Finding of Fact #14 is not fact. TransCanada is not seeking to ship more oil to the U.S. Keystone XL will ship more oil through the U.S. to the international market, raising our gasoline prices in the process.

Besides, TransCanada can't count on the U.S. market, because we are using less oil. Let's look at new EIA data and projections showing the significant changes in the oil market in the four years since the PUC issued its findings:

U.S. demand for petroleum is no longer increasing. U.S. demand for petroleum peaked in 2007, which appears to be the final year the PUC considered in formulating its economic analysis. Petroleum demand plunged during the recession. The EIA projects U.S. petroleum use will remain flat over the next 25 years.

EIA AEO 2014-primary energy use by fuel 1980-2040

EIA Annual Energy Outlook 2014, p. MT-6

EIA projects U.S. crude oil consumption will decrease 0.1% a year through 2040 (see EIA AEO 2014, p. A-1).

U.S. domestic crude production is no longer declining. U.S. production troughed at about the same time U.S. consumption peaked. Booming oil production on the Bakken and elsewhere has erased the preceding twenty-year decline and will likely remain above the previous 1990 peak through 2040.

EIA AEO 2014 - U.S. Crude Oil Production 1990-2040

EIA Annual Energy Outlook 2014, p. MT-27

The EIA projects domestic crude oil and lease condensate energy production will increase 0.5% a year through 2040 (see EIA AEO 2014, p. A-1).

U.S. petroleum imports are no longer increasing. Same arc: increase to the mid-2000s, followed by a dramatic decrease thanks to recession- and conservation-driven reductions in consumption and Bakken-frackin' production increases. In the best-case scenario, the U.S. is a net exporter by the mid-2030s. Worst-case, our imports return to a bit above current levels, still less than 50%.

EIA AEO 2014 - Net import share of US petro-liquids 1990-2040

EIA Annual Energy Outlook 2014, p. MT-29

The EIA projects that U.S. crude oil imports will decrease 0.2% a year through 2040 (see EIA AEO 2014, p. A-1).

TransCanada does not have to make an economic case to the Public Utilities Commission. The pipeliners' burden of proof consists mostly of showing that they'll follow the rules and not kill anybody.

But if Commissioners Hanson, Nelson, and Fiegen are going to include economic and energy security justifications in their discussion of the merits of Keystone XL, they'll want to revisit the oil market and consider the significant changes that have taken place in U.S. oil consumption, production, and imports since the PUC issued TransCanada its initial permit.

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