Plains Justice Environmental Justice for the Great Plains

Paul Blackburn, J.D.Staff Attorney, Plains Justice

100 East Main StreetVermillion, SD 57069

Tel. 605-675-9268pblackburn@plainsjustice.org

Keystone XL:Local Concerns

Landowner Background

Client: Dakota Rural Action•Members are mostly farmers and ranchers•Primarily concerned about agricultural issues•Members run cow calf, row crop, other •Members generally not philosophically opposed to oil development•They do not run pipeline companies or regulate pipelines

State Regulatory Setting

• South Dakota Public Utility Commission (SDPUC)

• Does not have routing authority• No delegation to state of liquid pipelines

safety regulation

Pipeline Safety Concerns

• Setbacks• Special Permit• Impacts on groundwater• Routing • Reclamation after

construction and abandonment

• Right of way maintenance

• Identification of HCAs

• Pressure study• Notification of incidents

and safety conditions• Pipeline construction

standards / use of substandard materials

• Training/coordination with first responders

• Participation in ERP development

• Distribution of as-constructed maps to landowners

By the Way, Other Concerns• Road issues• Liability for damages• Perpetual easements• Confidentiality clauses• Future easement use• Survey access• Easement payments• Devaluation of

property• Need for pipeline

• Impacts on soils• Paleontological

resources• Appropriate

replanting• Environmental review• Review of tax

estimates• Use of American steel• Impact on local

electrical power costs

An Enormous Burden for Everyday People

• Complex regulatory structure

• Complex public/private hearing rights and opportunities

• Large number of impacts and issues

• Tremendous learning curve

• Diverse and complex technical issues

• Distant agencies

• Impossible time requirements

• Significant financial impacts

State Action on Pipeline Safety Issues

• Due to federal preemption the SDPUC cannot grant any safety-related relief

• Regardless, the SDPUC took evidence on compliance with federal law, but refused to allow discovery

• The result is that landowners see state review of federal pipeline safety issues, but are upset when the state refuses to take action on pipeline safety

• In addition, some landowner concerns can be addressed through easement negotiations

Department of State NEPA Lead?

• EO 13337: national interest determination is limited to foreign affair issues, such as importation capacity and border crossing location

• DOS has NO special capacity or authority to regulate pipelines other than the location and capacity of the border crossing

PHMSA Role

• PHMSA has more authority to regulate pipelines than any federal or state agency

• PHMSA had no formal role in the Keystone 1 NEPA process

• Now that TransCanada has withdrawn its special permit application, the DEIS does not identify any PHMSA action subject to NEPA

• PHMSA has NO public hearing process for any of its pipeline safety actions, other than special permits

Routing

• PHMSA does not have routing authority• DOS does not have routing authority (except

for location of border crossing)• No other federal agency has routing authority• Many states do not have routing authority;

Montana does• No counties have routing authority• AND YET, the DOS DEIS considers alternative

interstate routes

Nearly Unlimited Waiver Discretion

• Limited only be the phrase “not inconsistent with pipeline safety”

• Remarkably broad waiver authority to waive safety standards

No Formal Public Participation in PHMSA Project Actions

• PHMSA regulations provide no formal public hearing opportunities , except special permits (for now), even though there is no legal bar

• Informal conversations (not trusted)

• After the fact review is difficult and may come too late

• PHMSA’s project-specific regulatory actions are secret while they are happening

TRUST

• Complex regulatory process that only an industry lawyer could love

• Very broad agency discretion• No formal public participation on agency project-

specific work, except for special permits• Close working relationship between PHMSA and

regulated community

And you have to ask why the public doesn’t trust you?

Plains Justice

Paul Blackburn100 First Street Southwest

Cedar Rapids, IA 52406Tel. 319-362-2120

http://www.plainsjustice.orgclaseur@plainsjustice.org