By Frank James, DRA Staff Director
This article originally posted on DRA’s Legislative blog on April 19, 2017
About half way through the Supreme Court hearing on April 17th of Dakota Rural Action’s case on the Keystone XL Pipeline, I began wondering who was representing the people of South Dakota.
This may seem pretty straight forward at least in principle, Adam de Hueck, the attorney for the Public Utilities Commission (PUC) in the hearing, should be the clear choice. However, I think he threw us all under the bus.
This judgement stems from a question posed by the Supreme Court a week prior to yesterday’s hearing. I learned about it from DRA’s Attorney Bruce Ellison at our Black Hills Chapter Annual Meeting in Rapid City. He said the Supreme Court staff found a statute passed 40 years ago dealing with PUC certification actions like the one we are appealing. This law called into question whether the PUC was required to do anything other than accept TransCanada’s certification of their permit, and whether they were even required to hold a hearing on that certification. To a lay person, this raises the question of the point of the whole process. If the PUC isn’t required to act, then why have the certification process in the first place?
To get a clearer picture we need to go back a little further because the path of the Keystone XL Pipeline permit is long and full of potholes. Here’s the short version. In 2010 the PUC gave TransCanada a construction permit for over 300 miles of pipeline in South Dakota. This construction permit has over 50 conditions attached to it. Four years without construction triggered another PUC law requiring the company to apply for a compliance certificate. That law requires TransCanada to certify to the PUC that it is in compliance with those 50-plus conditions.
This is where DRA and over 40 other intervenors had a problem. Buried in those conditions were real problems with the pipeline, everything from its construction and risks of spills and leaks, to how they treated landowners and tribes. The PUC opened a docket for the certification and held nine days of hearings. Hundreds of participants and dozens of lawyers gave hours of testimony. In the end, the PUC granted the certification to TransCanada.
This story makes a brief stop in March of 2017 for our SD Circuit Court appeal of that decision. Judge Brown found in favor of the PUC and TransCanada.
So back to Rapid City, one week before the Supreme Court hearing. Attorney Ellison talked about the fact that the PUC held a nine day hearing acting in a quasi-judicial way to grant the certificate. Obviously, the PUC believed they had a duty to hear the public, hold a hearing and make a decision. I left Rapid City thinking this procedural question would be a small part of the Supreme Court hearing and the story.
I was wrong.
From the first question from a Supreme Court Justice, it became clear they were focused on this procedural issue. Was the PUC required to make a decision on the certificate, and did DRA and others have the right to appeal that decision? DRA’s attorneys Bruce Ellison and Robin Martinez, Cheyenne River Sioux Tribe’s attorney Tracey Zephier, and Yankton Sioux Tribe’s attorneys Thomasina Real Bird and Jennifer Baker made strong arguments supporting the PUC’s authority.
The PUC’s Attorney de Hueck was next up, and he argued the PUC made a mistake, wasted everyone’s time for nine days, and that the Supreme Court should throw out this appeal based upon this newly-found and interpreted piece of law. He even let the Supreme Court Justices know that the PUC was considering editing some of their own documents to remove references to appeal rights, which would effectively prevent citizens from appealing future decisions made by the PUC.
There was nothing stopping the PUC from defending their process and urging the Supreme Court to decide this case on the merits presented to the Circuit Court. Instead, the PUC abandoned its previous arguments, and its attorney was almost gleeful with this opportunity to further block regular citizens from participating in the process.
This follows the theme started in this year’s Legislative session which featured bills designed to reduce citizens’ access to the initiative and referendum process, and bills to keep people from fully participating in the local siting of large facilities like Confined Animal Feeding Operations. Another bill would have removed the PUC certification process for large wind energy and transmission facility projects.
Essentially, this is one more attempt to remove the state’s oversight authority and replace it with rubber-stamp permitting processes, with little or no public involvement.
So the question remains: Who will represent the people?