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....