PIERRE | The developers of the Keystone XL pipeline on Tuesday won two legal battles before the South Dakota Public Utilities Commission.
As a result, a tribal environmental group has lost its bid to present testimony on climate change at a pipeline-permit hearing this summer, and TransCanada, the pipeline developer, will not face severe penalties requested by pipeline opponents.
The Intertribal COUP organization planned to offer three scientists to testify about tar-sands development and climate change. But the group lost that opportunity when it failed to meet a requirement in the hearing process.
I-COUP’s plan next became to present the three as rebuttal witnesses. TransCanada’s lawyers won their argument Tuesday before the commission that the witnesses shouldn’t be allowed at all.
The purpose of the July 27-31 and Aug. 3-4 evidentiary hearing is for the commission to consider whether TransCanada can continue to meet all of the conditions originally set in the 2010 permit.
Because four years have elapsed without the start of construction, state law requires the company to seek the certification for the permit to remain valid.
James Moore, a Sioux Falls lawyer who represents TransCanada in South Dakota, said Tuesday the 2010 permit conditions didn’t include climate change.
Commissioner Gary Hanson agreed, saying the commission in 2010 limited its scope to conditions in South Dakota, not in Canada or other states.
TransCanada wants to build the pipeline from tar-sands fields in Alberta, Canada, through Montana and South Dakota and then into Nebraska where it would connect with an existing network.
Intertribal COUP, formally the Intertribal Council On Utility Policy, is based at Rosebud, S.D. Its lawyer, Robert Gough, argued Tuesday that conditions aren’t the same as they were in 2010 on climate change.
For example, Gough said, carbon dioxide emissions now are being regulated by the U.S. Environmental Protection Agency.
One of the witnesses planned by Intertribal COUP was identified in commission filings as James Hansen, a former director for the NASA Goddard Institute for Space Studies and now a faculty member at Columbia University where he runs a program in climate science, awareness and solutions.
Commission Chairman Chris Nelson expressed some hesitancy about banning all three witnesses altogether because they might have information to offer in rebuttal to other points brought up at the hearing.
But commissioner Hanson said the topics identified by Intertribal COUP focused on climate issues. That led to a 3-0 vote in favor of TransCanada.
In the second battle, TransCanada succeeded in fighting off a motion seeking to severely penalize the company over its treatment of information discovery requests by pipeline opponents.
Commissioners voted 3-0 to deny a motion seeking to prohibit TransCanada from presenting any witnesses or evidence.
“It appears to me TransCanada has acted in good faith in compliance with our standards,” Commissioner Kristie Fiegen said.
Hanson said the sanction request “is just far, far, reaching far beyond” the discovery disputes.