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South Dakota regulators to hear Keystone XL arguments again, 10 things to know

Amberiah Smith (Wa hinhe anpa win 'Daylight Snow Woman'), of Woonsocket, takes part in a march across the Missouri River in collective protest of the Keystone XL Pipeline. On Sunday native and non-native horse riders rode into Fort Pierre from the four directions - north, south, east and west - to show their collective resistance to the Keystone XL pipeline certification in South Dakota. Submitted by Dawn Smith1 / 3
Amberiah Smith (Wa hinhe anpa win 'Daylight Snow Woman'), of Woonsocket, takes part in a march across the Missouri River in collective protest of the Keystone XL Pipeline. On Sunday native and non-native horse riders rode into Fort Pierre from the four directions - north, south, east and west - to show their collective resistance to the Keystone XL pipeline certification in South Dakota. Submitted by Dawn Smith2 / 3
On Sunday native and non-native horse riders rode into Fort Pierre from the four directions - north, south, east and west - to show their collective resistance to the Keystone XL pipeline certification in South Dakota. Submitted by Dawn Smith3 / 3

PIERRE -- Starting Monday, the state Public Utilities Commission plans to spend seven days during the next weeks deciding whether TransCanada can still meet the permit conditions set five years ago for its proposed Keystone XL oil pipeline.

The pipeline would haul oil product mined from bitumen sands in Alberta, Canada, through Montana and South Dakota into Nebraska, where it would connect with the existing distribution network.

The PUC will again consider the South Dakota segment of the route through Harding, Butte, Perkins, Meade, Pennington, Haakon, Jones, Lyman and Tripp counties.

The PUC granted the permit for the Keystone XL project on June 29, 2010. The Calgary-based company didn’t start construction, however, because President Barack Obama’s administration hasn’t given approval yet for the pipeline to pierce the U.S. border.

State law requires that in such instances, where the project hasn’t begun within four years, the permit holder can ask the commission to certify the permit conditions can still be met. That is the purpose of the current hearing.

The Republican majorities in Congress attempted this year to give TransCanada permission to enter the United States, but Obama vetoed the legislation.

TransCanada wants to keep its South Dakota permit valid in hope the company will eventually win the U.S. government’s approval. Opponents of the project see the potential for more global pollution if the bitumen-based oil reaches world markets.

For the opponents, who are more organized and more numerous this time, the certification hearing is a rare second chance.

TransCanada already operates another pipeline known as the Keystone -- without the XL -- down the James River valley through South Dakota.

10 things to know about Keystone XL

1. The commission’s membership has changed since the 2009-2010 proceedings. Gary Hanson remains, but chairman Chris Nelson and Kristie Fiegen came aboard in 2011 as successors to Dusty Johnson and Steve Kolbeck, who each resigned.

2. The opposition has deepened and broadened.

There were 15 interveners in the 2009-2010 proceedings, with Paul Blackburn from Plains Justice in Vermillion as the one attorney for the opponents who included Dakota Rural Action.

This time, there are approximately 40 interveners, including the Rosebud Sioux Tribe, the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, the Yankton Sioux Tribe, Bold Nebraska, Dakota Rural Action and several other organizations opposed.

3. Global warming won’t be a consideration at the hearing. Nor will tribal treaty claims to the now-private lands the pipeline would cross. Those have been ruled out of bounds by the commission.

4. The challenge for the interveners is to prove to the commission that conditions are inadequate as set in the original permit. The challenge for the company is to show the conditions can still be met.

5. A possible wild card in this round of permitting is safety, in case of a landslide along at least one segment of the proposed route.

6. The mood changes by the day and the week.

The commission didn’t seem prepared for the intensity of opposition this time. The sides couldn’t reach agreement on a procedural schedule. The commission originally set the hearing for May 5, but pushed it back to now.

There has been a months-long stream of motions by various parties. Interveners have complained repeatedly they didn’t receive adequate time for discovery.

7. Who’s winning? Generally TransCanada has fared okay during the preliminary disputes, but the commission has sided with interveners when TransCanada didn’t produce information.

In the past week, the commission rejected many rules sought by TransCanada for the hearing, but chairman Nelson also told one of the interveners’ lawyers essentially to pipe down when some of the decisions went partially TransCanada’s way.

8. The commission’s decision likely won’t be the final act regarding the South Dakota segment of the proposed route. Court appeals probably will follow regardless of the prevailing side on the PUC permit.

9. This certification process is new ground for the commission.

10. The schedule calls for marking exhibits starting at 8 a.m. today and the hearing formally starting at 9 a.m. The hearing is set to continue through Friday and resume Aug. 3-4, starting daily at 8 a.m. The location is the Capitol, room 414. Live audio each day is available through a link at www.puc.sd.gov.

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