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In 180 Degree Pivot, SD Wants Stronger KXL Conditions

October 31, 2011

According to the Sioux Falls Argus Leader, South Dakota Governor Dennis Daugaard announced Friday that he:

will ask the Legislature this session to “impose additional protections” on the Keystone XL pipeline, similar to concessions that Nebraska lawmakers recently won from TransCanada….

While it’s delightful to hear that South Dakota officials now care about protecting the state’s land and water and ensuring an open and complete public process, this is a major break with previous actions taken by the state on Keystone I and Keystone XL.  For example:

  • As early as September 2007, months before the presidential permit was approved, TransCanada was threatening SD landowners with condemnation for Keystone I and making good on its threats with petitions for condemnation in district court, while the state stood by deaf to pleas for help from its own citizens.
  • Throughout late 2007, landowners along the route were writing to the state of South Dakota asking for more protective conditions, along the lines of what Nebraskans would eventually demand.  They weren’t silent, they were ignored.  We have copies of letters asking for specific permit conditions and expressing concern about risks to local shallow aquifers.  A SD Public Utilities Commissioner responded to one expression of concern by telling an affected resident:

many of the points you raise, however, should really be addressed at the state and federal legislative and policy level, rather than at an ad hoc quasi-judicial proceeding. To the extent that the rules need to be changed, they need to be changed for everyone in a fair and open process. I mention this fact, not to pass the buck (because I will certainly take your comments into account), but because I must act according to rules that I don’t make (e.g., applicable statutes and case law).

  • Even the Standing Rock Sioux weighed in with their opposition in a letter to the SD Public Utilities Commission.
  • In February 2010, the South Dakota PUC proposed a set of conditions for siting Keystone XL that were actually less protective than the conditions required for siting Keystone I.  Advocates had to fight every inch (see the reply brief authored by Plains Justice attorney Paul Blackburn) for conditions less protective than what TransCanada has now offered in Nebraska.
  • A 2011 bill pushed by Dakota Rural Action would have established a $30M cleanup fund by taxing large oil pipelines, but it failed.

Plains Justice identified serious procedural and substantive problems with the PUC’s proposed Keystone XL siting conditions, including persistent failure to observe appropriate public participation practices.  The final order included greater protections than what the PUC originally proposed, but we remain concerned about:

  • Inadequate easement terms, which landowners have had to negotiate independently with their own resources;
  • Inadequate setbacks from residences and businesses;
  • Inadequate pipeline abandonment and reclamation standards;
  • Protection from road damage and disruption;
  • Liability and bonding by TransCanada for any and all surface, subsurface and water damages; and
  • Inadequate emergency response planning and local emergency responder resources (this list is not exhaustive).

So it’s great that Gov. Daugaard now wants a better deal, having seen that Nebraska may get one, but nobody should believe that South Dakotans weren’t asking their elected officials for help against TransCanada for the last 4 years.

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