Everything TransCanada Didn’t Want Nebraska’s Regulators To Know About Keystone XL

Tribes and other anti-pipeline advocates say Big Money may have kept Nebraska’s public service commission from hearing the whole story.

Kate Aronoff

A rare moment of honesty at this week's Nebraska Public Service Commission hearing on the Keystone XL pipeline. (Screen shot/live stream)

More than a day ahead of sched­ule, the Nebras­ka Pub­lic Ser­vice Com­mis­sion (PSC) hear­ing on the Key­stone XL pipeline was called to a close Thurs­day in down­town Lin­coln. The landown­ers, tribes and envi­ron­men­tal­ists opposed to the mas­sive infra­struc­ture project, though, say the com­mis­sion didn’t get the full story.

“As Native Americans, our rights are always pushed to the side."

By order of the state law that allowed for the PSC hear­ings to take place, all par­ties were barred from talk­ing about pipeline safe­ty, includ­ing the risk of leaks and spills. Also off the table for dis­cus­sion were points about the neces­si­ty of the pipeline, emi­nent domain issues and nego­ti­a­tions between Tran­sCana­da and landown­ers along the route.

Bri­an Jorde of Dom­i­na Law Group is one of the attor­neys rep­re­sent­ing landown­ers in this week’s hear­ing, and he has been work­ing with landown­ers to fight Key­stone for the last sev­er­al years. He says there’s a rel­a­tive­ly sim­ple rea­son why the terms of the leg­isla­tive statutes — and the hear­ing, by exten­sion — have been so favor­able to the com­pa­ny: mon­ey. Tran­sCana­da is a mas­sive lob­by­ing force in the state, and anti-pipeline advo­cates sus­pect they played a heavy hand in set­ting the terms of the hear­ing. A Tran­sCana­da sub­sidiary donat­ed $20,000 to the Nebras­ka Repub­li­can Par­ty in Feb­ru­ary, and the com­pa­ny has spent a total of $925,000 on lob­by­ing in the state over the last five years.

The real­i­ty is that Tran­sCana­da and its lob­by­ists had a hand in draft­ing those laws…It’s unfor­tu­nate that the state of Nebras­ka can’t con­sid­er one of the most fore­see­able prob­lems when eval­u­at­ing whether or not the route is in its prop­er loca­tion, if there is any,” Jorde said of poten­tial leaks.

Giv­en the pre­pon­der­ance of pipeline mal­func­tions, the exclu­sion of any dis­cus­sion of such dan­gers seems like an espe­cial­ly odd move. In 2012, ProP­ub­li­ca found that the Unit­ed States’ 2.5 mil­lion miles of oil and nat­ur­al gas pipelines expe­ri­ence hun­dreds of leaks and rup­tures each year, in some cas­es involv­ing seri­ous injury and even death. Anoth­er oper­a­tional Key­stone pipeline — of which Key­stone XL would be an exten­sion—leaked some 17,000 gal­lons of oil into South Dako­ta in the spring of 2016, just after water pro­tec­tors found­ed the encamp­ment at Stand­ing Rock. The project at the heart of that encamp­ment — the Dako­ta Access Pipeline, plus a feed­er line into it—rup­tured in two loca­tions even before it start­ed ship­ping oil, unleash­ing more than 100 gal­lons of oil into North Dakota.

It’s like we’ve all got lot­tery num­bers,” says retired teacher Art Tanderup, who lives with his wife, Helen, on their farm along the pipeline’s pro­posed route. When is our lot­tery num­ber going to come up? It may nev­er come up, but in this kind of sit­u­a­tion the odds are great that some­body in Nebras­ka is going to have a severe leak a few years after they put that in. It’s not good if it hap­pens any place in Nebras­ka, but espe­cial­ly if it hap­pens over our most pre­cious water sup­ply in our most porous soil,” he said, ref­er­enc­ing the Ogal­lala Aquifer — the country’s largest — and the fact that Nebraska’s sandy soil would be par­tic­u­lar­ly vul­ner­a­ble to absorb­ing spilled oil. That would be a total disaster.”

Jorde also said that the commission’s pro­hi­bi­tion on con­sid­er­ing argu­ments about ease­ments — rights to land on which the pipeline would be built — pre­sent­ed seri­ous chal­lenges to giv­ing the PSC a holis­tic view of the project. All a route is is a string of con­nect­ed ease­ments,” he argued. If we can’t talk about the ease­ments, we can’t real­ly have an intel­li­gent con­ver­sa­tion about the route.”

Because the scope of the hear­ing was so nar­row, sev­er­al lines of tes­ti­mo­ny were exclud­ed from the thick stack of doc­u­men­ta­tion the PSC will be con­sid­er­ing over the com­ing weeks.

Those with the most restric­tions placed upon them were the Pon­ca and Yank­ton Sioux tribes, which each argue that the pipeline would present a score of eco­nom­ic, social and envi­ron­men­tal haz­ards. The Pon­ca and Yank­ton Sioux tribes, each of which have land claims along the pipeline’s route, had ini­tial­ly filed to par­tic­i­pate sep­a­rate­ly in the hear­ing. The com­mis­sion even­tu­al­ly ruled that the Pon­ca and Yank­ton Sioux should com­bine efforts to serve, effec­tive­ly, as one party.

We’re two sep­a­rate, sov­er­eign nations,” says Jason Cooke, an elect­ed chair­man of the Yank­ton Sioux tribe of Nebras­ka who took the stand on Wednes­day. They said we’re com­mon,’ ” he added, ref­er­enc­ing the PSC’s asser­tion that his and the Pon­ca tribe have com­mon inter­ests regard­ing Key­stone XL. Are we com­mon because of our color?”

In the hearing’s final min­utes, for­mer Lan­cast­er Coun­ty Judge Karen Flow­ers, who presided over the hear­ings, debat­ed with lawyers for each tribe about how many pages each would be allot­ted for their writ­ten clos­ing argu­ments, to be sub­mit­ted in mid-Sep­tem­ber. While Tran­sCana­da, NGOs and landown­ers can write 50 pages each, the Pon­ca and Yank­ton Sioux were required to split the 50 pages among them.

Lawyers for trib­al nations were also only allowed to col­lect tes­ti­mo­ny and call wit­ness­es that dis­cussed cul­tur­al resources, or sites of sacred or his­tor­i­cal importance.

The idea that tribes only have cul­tur­al inter­ests is ridicu­lous,” Brad Jol­ly, attor­ney for the Pon­ca tribe, told In These Times. Obvi­ous­ly the tribe shares the same inter­est as every­body else: envi­ron­men­tal­ly, social­ly, eco­nom­i­cal­ly — every­thing. There’s a due process prob­lem there. The tribe has rec­og­niz­able rights of self-government…we see that and sev­er­al oth­er things as vio­la­tions of due process.”

Among the tes­ti­mo­ny strick­en from the Yank­ton Sioux tribe’s tes­ti­mo­ny were state­ments relat­ed to man camps — tem­po­rary liv­ing quar­ters for work­ers build­ing fos­sil fuel infra­struc­ture in rur­al areas.

Perkins stat­ed that his employ­ees would be sub­ject to drug tests in his tes­ti­mo­ny to the PSC, though he admit­ted on the stand that Tran­sCana­da has not yet met with police depart­ments along the route where they would be work­ing about how to han­dle the enforce­ment of drug-relat­ed or oth­er offens­es. He also stat­ed that the com­pa­ny doesn’t pre­clude work­ers who are con­vict­ed sex­u­al offend­ers, demur­ring about whether the pipeline devel­op­er would enforce fed­er­al laws requir­ing such offend­ers to file in the Nebras­ka state registry.

The man-camps that sprung up in North Dako­ta dur­ing the oil boom there were noto­ri­ous for bring­ing high lev­els of sex­u­al assault and domes­tic vio­lence, and at one point the state had the high­est ratio of sin­gle young men to sin­gle young women, accord­ing to The New York Times.

Cooke said his tribe is deeply con­cerned about the impact of sim­i­lar dynam­ics on the tribe-owned Fort Ran­dall Casi­no & Hotel, one of few places to drink along the sparse­ly pop­u­lat­ed bor­der between Nebras­ka and South Dako­ta where Key­stone XL would cross. These guys from the man camp are going to come to the casi­no. They say they won’t but they will. And they’re not going to come to gam­ble,” a major source of rev­enue for indige­nous-owned casi­nos. They’re going to come to drink and prey on our women and chil­dren,” he said.

For tribes, adding poten­tial­ly thou­sands of new, non-native res­i­dents to areas near reser­va­tions cre­ates a par­tic­u­lar chal­lenge. Like oth­er tribes, the Yank­ton Sioux don’t have either a mem­o­ran­dum of under­stand­ing with local police depart­ments, or a pro­gram for cross-dep­u­ti­za­tion of law enforce­ment offi­cers inside and out­side of the reservation.

Among the biggest con­cerns for the Yank­ton Sioux and sev­er­al oth­er tribes is the dan­ger a spill could pose to their water sup­plies. Our land that we farmed bare­ly makes enough for our peo­ple,” he said. Water is our num­ber one asset on our reser­va­tion. If it’s con­t­a­m­i­nat­ed from upstream, what are we going to do? Are we going to have to start buy­ing water?”

And even with­in the cul­tur­al resources frame­work that the Pon­ca and Yank­ton Sioux were per­mit­ted to tes­ti­fy about, argu­ments about spills are all but unavoid­able. Jol­ly, who’s spent his career as a trib­al rights attor­ney, recalled legal pro­ceed­ings sev­er­al years ago to remove under­ground sep­tic tanks on reser­va­tions. The process was ter­ri­ble because it’s not just remov­ing the tank. The prob­lem is they all leaked,” he said. You have to dig up every bit of that soil and take it away. You can’t wash it. You can’t clean it. It’s done. You do that with a cul­tur­al resource and it’s gone. It’s not just a mat­ter of bring­ing in new dirt.” As he had point­ed out dur­ing the hear­ing, the route Tran­sCana­da has applied for — and that could be vul­ner­a­ble to a spill — butts up against the Pon­ca Trail of Tears, along which sev­er­al mem­bers of the tribe died while being forcibly relo­cat­ed to Okla­homa in 1877.

Landown­ers were quick to crit­i­cize how tribes were siloed dur­ing the pro­ceed­ings. Their voice was sti­fled,” Tanderup told In These Times short­ly after the hear­ing con­clud­ed. I feel so ter­ri­ble the way the tribes have been treat­ed here. We stand behind them … they were severe­ly mis­treat­ed, as they’ve been mis­treat­ed for gen­er­a­tions. It’s some­thing huge com­pa­nies think they can do, is con­tin­ue to mis­treat people.”

On the legal end, the PSC will now have until Novem­ber 23rd to make a final deci­sion, before which time attor­neys from each team will sub­mit final brief­in­gs to the com­mis­sion. What­ev­er they decide, appeals are expect­ed from the los­ing par­ties. In the case of anti-pipeline forces, those appeals will take place inside and out­side the legal sys­tem. At a press con­fer­ence just after the hear­ing was adjourned, Bold Alliance founder and Nebras­ka Demo­c­ra­t­ic Par­ty chair Jane Kleeb pledged civ­il dis­obe­di­ence should the PSC rule in TransCanada’s favor: Stand­ing Rock was a dress rehearsal com­pared to what this will be. We are not going to let an inch of for­eign steel touch Nebras­ka soil.”

Tanderup sec­ond­ed the pledge. We’ll be out there in front of the bull­doz­ers,” he told In These Times. We will not allow them on our land. We will not allow them in the state of Nebraska.”

Asked what’s next, Cooke had a straight­for­ward answer: Keep fight­ing,” he said. As Native Amer­i­cans, our rights are always pushed to the side. I think that’s what makes us strong, though. We nev­er give up.”

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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