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

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?

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.”