From the Public Utilities Commission’s hearing agenda tomorrow, a portion of the re-hearing of the Keystone Pipeline. And we should be ashamed of it:
1. HP14-001 In the Matter of the Petition of TransCanada Keystone Pipeline, LP for Order Accepting Certification of Permit Issued in Docket HP09-001 to Construct the Keystone XL Pipeline (Staff Analysts: Brian Rounds, Darren Kearney; Staff Attorney: Kristen Edwards)
On September 15, 2014, the Commission received a filing from TransCanada Keystone Pipeline, LP (Keystone) seeking an order accepting certification of the permit issued in HP09-001. The Commission issued an Amended Final Decision and Order granting a permit to Keystone on June 29, 2010. Because it has been at least four years since the permit was issued, Keystone now seeks an order accepting certification, per SDCL 49-41B-27. An intervention deadline of October 15, 2014, was set. The Commission granted intervention to several parties. On October 30, 2014, Keystone filed a motion seeking to define the scope of discovery by limiting discovery to issues related to whether the project continues to meeting the conditions on which the permit was granted, as provided by SDCL § 49-41B-27. Many of the parties filed responses to Keystone’s Motion. On November 4, 2014, the Commission issued a Prehearing Scheduling Conference Order setting a prehearing scheduling telephonic conference to be held by Commission Counsel on November 13, 2014, in an effort to reach a consensus of the parties on an appropriate procedural schedule for the docket. Commission Counsel held the prehearing teleconference as scheduled with most parties attending, but a consensus on an appropriate schedule could not be reached among the parties.
TODAY, shall the Commission grant Keystone’s Motion to Define the Scope of Discovery Under SDCL § 49-41B-27? AND, shall the Commission issue a procedural schedule? OR, how shall the Commission proceed?
Tomorrow’s hearing is not the final hearing on whether the pipeline is granted a continued permit at the state level for the project delayed on an embarrassing manner by the Obama Administration. What tomorrow consists of is a decision on the scope of discovery for the permit renewal.
Under State law, as provided by SDCL § 49-41B-27, discovery on the renewal should be limited to to issues related to whether the project continues to meeting the conditions on which the permit was granted. According to state law:
49-41B-27. Construction, expansion, and improvement of facilities. Utilities which have acquired a permit in accordance with the provisions of this chapter may proceed to improve, expand, or construct the facility for the intended purposes at any time, subject to the provisions of this chapter; provided, however, that if such construction, expansion and improvement commences more than four years after a permit has been issued, then the utility must certify to the Public Utilities Commission that such facility continues to meet the conditions upon which the permit was issued.
Tomorrow’s hearing is to settle the arguments between the pro and con sides just how wide-ranging the scope should be.The fact that we have to have a permit continuation hearing in the first place is shameful.
Unfortunately, and solely because of the delay at the federal level, this additional regulatory roadblock dating back to 1977 is thrust upon Transcanada at the state level requiring them to re-argue what has already been decided.
Forty years ago, the permitting process was much more expedient, and four years would have been an eternity not to break ground. Now, “A.K.” (After Keystone) four years means the ink on the federal government’s reply hasn’t been set to paper yet.
Frankly, that’s no way to run a government.
It may be too late to address this issue for Transcanada, but in the 2015 legislative session, Legislators should take a good, hard look at changes to this nearly 40 year old law in light of the regulatory hurdles and the ‘permitting purgatory’ imposed upon energy production by the federal government. If there is this much inertia at the federal level, and they’re going to drag out the process for five and six years at a time, that needs to be taken into consideration at the state level, and this law should be amended.
Given that there is now precedent for the federal process to drag on ad infinitum, if utility companies are going to be subject to this kind of regulatory environment this outdated law should be changed to grant permitting for a minimum of ten years, if not longer, for companies to start construction.
To force them to go through a state permitting process twice before they even break ground is an onerous regulatory burden at the state level, and just as bad as what they’re being subjected to by the federal government.
At the state level, we like to think we’re better than that. This next legislative session, it’s time to prove it.