PUC sets new hearing dates in TransCanada pipeline case

PIERRE — The state Public Utilities Commission set new dates on April 30 for taking testimony about whether TransCanada can still meet the conditions set five years ago for building the proposed Keystone XL pipeline through South Dakota.

The evidentiary hearing will be July 27-31 with Aug. 3-4 if needed. The hearing had been scheduled for May 5-8 until the commission decided on April 26 to push it back.

“As I look around the room, there’s a lot of — nobody’s happy,” Chris Nelson, the commission’s chairman, said. “This may be the best that we can accomplish.”

State law requires the certification hearing because TransCanada wasn’t able to proceed on the project within four years after the state permit was granted in 2010.

The company is waiting for clearance from President Barack Obama’s administration for the pipeline to pierce the Canada-U.S. border.

TransCanada wants to ship tar-sands oil from Alberta through Montana and South Dakota to Nebraska, where the pipeline would connect with the existing distribution network.

The commission also listened to the sides argue for some 90 minutes on April 30 about the protective order that had been granted earlier to TransCanada.

“At this point, we can’t even show documents to our clients for comment,” Robin Martinez, a lawyer representing Dakota Rural Action, said.

The order allows TransCanada to keep information out of the public domain, but be available to lawyers and consultants working on the case.

The interveners opposing the pipeline’s construction wanted the commission to scrap the protective order. Instead, the commission allowed the sides to work out modifications to it.

Nelson said the commission didn’t have sufficient control over lay interveners who might violate the confidentiality requirements.

The state Supreme Court can discipline lawyers who don’t abide by it.

Bill Taylor, a Sioux Falls lawyer representing TransCanada, said the company has been allowing consultants to review the documents if they sign the confidentiality conduct agreement.

Taylor said the company had offered to discuss such requests with any intervener. Aside from Standing Rock Sioux Tribe and Yankton Sioux Tribe, he said, no one had called.

Some of the information is kept secret to protect burial and artifact sites along the proposed route across western and south-central South Dakota.

Further, Taylor said, the company has invested millions of dollars and years of time into gathering information that shouldn’t be free in the public domain.

“The company treats them as trade secrets,” Taylor said.

Commissioner Gary Hanson said giving access to the pro se interveners — those representing themselves without attorney — could harm the company.

“It would be highly irregular for this commission to do that,” Hanson said.

The commission’s original schedule provided for a four-day hearing. Now it is possibly seven days.

Commissioner Kristie Fiegen proposed the July 27-31 dates.

“It’ll be a long five days, I’m sure, or four days, or whatever,” Fiegen said.

PUC lawyer Kristen Edwards said the staff’s main consultant wouldn’t available that week.

Nelson and Hanson added the two days in August to allow time for the PUC’s main consultant to testify.

“I think that will allow for testimony of all the experts that need to be,” Nelson said. “Perhaps having two extra days wouldn’t be harmful.”

Fiegen voted against two August days. The final schedule, including various deadlines for motions, witness lists and evidence, then was adopted 3-0.

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