Trump Promised to Revive Keystone XL—But TransCanada May Not Even Want to Build It Anymore

The fate of the Keystone XL Pipeline will be decided in hearings this week in Lincoln, Nebraska, but one question remains unanswered.

Kate Aronoff August 8, 2017

Raised fists at the March to Give Keystone XL the Boot on August 6 in Lincoln, Nebraska. (Photo by Alex Matzke via Bold Nebraska)

LIN­COLN, NEBRAS­KA — As a week of hear­ings over the fate of the Key­stone XL Pipeline began today, there was an ele­phant in the room: Does Tran­sCana­da, the com­pa­ny behind the pipeline, actu­al­ly want to build it?

The Keystone fight has seen a high degree of collaboration between white landowners and indigenous nations along its proposed route.

Tran­sCana­da rep­re­sen­ta­tives, envi­ron­men­tal advo­cates, trib­al mem­bers, ranch­ers and oth­er Nebraskans gath­ered today in Lincoln’s Corn­husker Mar­riot Hotel to argue before the Nebras­ka Pub­lic Ser­vice Com­mis­sion (PSC) as to whether Tran­sCana­da should receive per­mits to build the pipeline across the state. With­out a route through Nebras­ka, there’s no Key­stone XL at all.

The infra­struc­ture project has become a pri­or­i­ty for the Trump admin­is­tra­tion, which revived it back in March. How­ev­er, the com­pa­ny won’t for­mal­ly decide whether it will con­tin­ue invest­ing in Key­stone until Decem­ber, as Tran­sCana­da exec­u­tive vice pres­i­dent Paul Miller announced last month.

Part of that choice will depend on the PSC’s rul­ing, which could come as late as Novem­ber. But just as impor­tant are the dra­mat­ic changes in the oil mar­ket since the Cana­di­an pipeline oper­a­tor first dreamed up the project in 2008. Oil prices col­lapsed in late 2014, and a lin­ger­ing over­sup­ply prob­lem means there may not be enough demand to jus­ti­fy the mas­sive build­ing project.

Tes­ti­mo­ny for the week’s hear­ings has been filed by all par­ties in advance, so the hear­ings will con­sist of cross-exam­i­na­tions and argu­ments. Wit­ness­es from Tran­sCana­da took the stand first, on Mon­day. Lead­ing off their cross-exam­i­na­tion is lawyer David Dom­i­na of Dom­i­na Law Group, the firm rep­re­sent­ing landown­ers along Key­stone XL’s route.

At rapid­fire pace, Dom­i­na quizzed Tran­sCana­da rep­re­sen­ta­tive Antho­ny Palmer about what the com­pa­ny would do if it received the per­mit and then decid­ed not to build the pipeline. Palmer declined to say whether Tran­sCana­da would sell off the route rights in that event, mean­ing it’s pos­si­ble that anoth­er com­pa­ny could build a dif­fer­ent pipeline through the same land. Part of why anti-pipeline forces are fight­ing this per­mit so aggres­sive­ly is that it gives Tran­sCana­da the right to the land and to car­ry out emi­nent domain in per­pe­tu­ity”. So if it’s grant­ed and the com­pa­ny aban­dons the project, that means they could sim­ply sell it off to anoth­er pipeline devel­op­er, like Ener­gy Trans­fer Partners.

Dom­i­na also spent much of the morn­ing attempt­ing to estab­lish that Palmer — the pres­i­dent of Tran­scana­da Key­stone Pipeline GP LLC, a Tran­sCana­da sub­sidiary that over­sees day-to-day pipeline oper­a­tions and con­struc­tion — is sev­er­al steps removed from Tran­sCana­da, the appli­cant for the per­mit through Nebras­ka. As Dom­i­na con­tend­ed, hav­ing Palmer as the sole rep­re­sen­ta­tive for the com­pa­ny in this week’s hear­ing would mean ask­ing the PSC to decide on the per­mit with­out hav­ing heard from the com­pa­ny that applied for it. For landown­ers, Domina’s clients, that also presents a prob­lem for account­abil­i­ty: The tan­gle of com­pa­nies that over­see pipelines makes it hard to deter­mine which peo­ple or enti­ties can be held account­able in the case of a leak or spill. 

All of the lawyers rep­re­sent­ing anti-pipeline groups will con­tin­ue to grill com­pa­ny rep­re­sen­ta­tive through Tues­day. On Wednes­day, pipeline oppo­nents are expect­ed to take the stand and face off against TransCanada’s lawyers, as well as those rep­re­sent­ing indus­try groups and the build­ing trades.

The Inter­venors

While a sim­i­lar process hap­pened in South Dako­ta in 2015, Nebraska’s PSC has nev­er admin­is­tered this type of hear­ing. It’s com­plete­ly unprece­dent­ed [in Nebras­ka],” says Bri­an Win­ston, an attor­ney rep­re­sent­ing the Nebras­ka-based Bold Alliance and the Sier­ra Club in this week’s pro­ceed­ings. They may get it right — but so far they’ve had a lot of rul­ings that are head scratchers.”

For exam­ple, Win­ston notes, the PSC decid­ed sev­er­al weeks ago to lim­it tribes’ tes­ti­mo­ny and evi­dence to cul­tur­al issues,” not safe­ty con­cerns or spill impacts. Tribe mem­bers, rep­re­sent­ed by attor­neys from the Pon­ca and Yank­ton Sioux nations, say the stip­u­la­tion vio­lates their First Amend­ment rights along with sev­er­al oth­er legal prece­dents. They also argue that, in addi­tion to dam­ag­ing med­i­c­i­nal plants and sacred sites, the route’s approval would vio­late sev­er­al treaties, includ­ing the 1851 and 1868 Fort Laramie Treaties.

Hun­dreds of peo­ple ini­tial­ly signed up to par­tic­i­pate in the hear­ing as inter­venors, a legal des­ig­na­tion that allows Nebraskans affect­ed by the project to present tes­ti­mo­ny and evi­dence to the com­mis­sion. The PSC con­sol­i­dat­ed the anti-pipeline reg­is­trants and com­bined them into 3 sep­a­rate enti­ties, leav­ing around 90 offi­cial­ly reg­is­tered inter­venors in three cat­e­gories: So-called nat­ur­al resources groups (most­ly envi­ron­men­tal NGOs), native tribes and landown­ers along the pro­posed route.

Because of the wide­spread nature of the threat this new pipeline could pose, the last sev­er­al years in the Key­stone fight have seen a high degree of col­lab­o­ra­tion between white landown­ers and indige­nous nations along its pro­posed route. Those bridges and rec­on­cil­i­a­tion between native and non-native set­tlers couldn’t have been done before,” says Joye Braun, a mem­ber of the Cheyenne Riv­er Sioux Tribe and the Indige­nous Envi­ron­men­tal Net­work, who was a reg­is­tered inter­venor in South Dakota’s Key­stone hear­ings, tells In These Times. Why? because we have a com­mon ene­my: Tran­sCana­da and big oil.”

What­ev­er the PSC decides this fall, all of the anti-pipeline forces giv­ing tes­ti­mo­ny this week — and many more — intend to do what­ev­er they can to pre­vent Key­stone XL from being built, whether in chal­leng­ing the find­ing in court, cor­ralling nation­al forc­ing or phys­i­cal­ly get­ting in con­trac­tion crews’ way.

Now you’re not just affect­ing what’s per­ceived as a native fight,” Braun says. What they did to us at Stand­ing Rock they’ll do to these white peo­ple, too. Is Amer­i­ca ready to see white farm­ers get­ting tear gassed and hit with per­cus­sion grenades on their own land? I hope not.”

Before the hear­ings kicked off, pipeline oppo­nents made it clear on the ground here that they don’t intend to back down. Braun was one of many peo­ple who came to Lin­coln Sun­day to par­tic­i­pate in a March to Give Key­stone XL the Boot on Sun­day, which drew more than 500 peo­ple from across the Mid­west and as far as Mis­sis­sip­pi Alber­ta, Cana­da. The aim was to build anti-pipeline momen­tum going into the hear­ing, Braun says., flanked by a mock pipeline and sto­ry-high signs.

When these march­es hap­pen, does it make an impact on what cor­po­rate exec­u­tives do?” Braun asks. No, I don’t think it does. But what it does do is that it gives per­mis­sion to those peo­ple who may be rid­ing the fence about get­ting involved, and that builds the movement.”

Kate Aronoff is a Brook­lyn-based jour­nal­ist cov­er­ing cli­mate and U.S. pol­i­tics, and a con­tribut­ing writer at The Inter­cept. Fol­low her on Twit­ter @katearonoff.
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