NEWS

S.D. permit for Keystone XL still in question

John Hultjhult@argusleader.com

The South Dakota Public Utilities Commission has voted down a move by tribal and environmental groups to force a reboot to the Keystone XL pipeline's state-level permitting process.

PUC commissioners did say there are clear questions about whether South Dakota's stretch of the massive and controversial project is still due the construction permit it earned in 2010, given a series of changes to its original scope.

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The 2014 version of the pipeline would be able to carry crude from North Dakota, for example, along with the anticipated crude extracted from Alberta's tar sands.

Even so, commissioners ruled that forcing pipeline owner TransCanada to start over without being offered a chance to explain how it could make those changes while meeting its old obligations would be a denial of due process.

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"We need to go through the process to find out," Commissioner Chris Nelson said.

TransCanada asked for re-certification of its 2010 construction permit in September. The company had to ask for re-certification because four years had passed since the permit was granted.

The pipeline stalled as President Obama chose to delay the issuance of a federal permit indefinitely, a move that has frustrated supporters, who say the project will add jobs and boost energy security. If completed, the Keystone XL pipeline would send more than 800,000 barrels of oil a day.

The GOP-controlled Senate is expected to take up the issue this week.

In a new application for the 313 miles of pipeline planned for South Dakota, the company notes 30 changes to the original project, including the addition of North Dakota oil, minor route changes, alterations to construction plans and costs.

The Yankton Sioux Tribe filed a motion to dismiss the company's application based on those changes, saying the re-certification process is meant for projects that have been delayed, not those that have altered dramatically in scope.

The permit was issued with a set of 50 conditions, which were based on the project as approved four years ago.

Thomasina Real Bird, a lawyer for the Yankton Sioux Tribe, told commissioners that the changes to the pipeline are simply too significant to allow the company to apply for re-certification.

The company isn't just asking to re-certify a stalled project, she said.

"They're going a step beyond, and that step is not allowed by law," Real Bird said.

Several others spoke in support of the Yankton Sioux Tribe's motion to dismiss, including Kimberly Craven of the Indigenous Environmental Network.

"I would urge the commission to start over," Craven said. "It's a new permit, a new ballgame."

Bill Taylor, a lawyer for TransCanada, told commissioners that re-certification is meant to determine whether delayed projects still fall within the scope of an old permit. Dropping a re-certification request because a project changes renders the re-certification process pointless.

Keystone XL has changed, but Taylor said the company is prepared to prove that it still meets each of the 50 conditions attached to its 2010 approval. The pipeline is still a pipeline, the product is the same, and the end result is more energy security for the U.S., Taylor said.

"The current iteration of the project can and will meeting the conditions upon which the permit is issued," Taylor said.

The PUC voted 3-0 to deny the motions to dismiss the application brought by the Yankton Sioux Tribe and joined by others. The hearing on the merits of the re-certification is planned for May.