TransCanada Wants Eminent Domain Testimony Stifled

Evidently what's "Good for America, Good for South Dakota" doesn't include open dialogue about the full impact of TransCanada's Keystone pipeline on South Dakota. That Sioux Falls paper reports that TransCanada's well-paid lawyer, Mr. Brett Koenecke of Pierre, has filed a motion to strike and exclude "all testimony... related to or offered for the purposes of describing Keystone’s specific landowner relations, land transactions, land acquisition efforts, condemnation lawsuits and use of eminent domain" [Peter Harriman, "TransCanada: Don't Mention Land Condemnation," that Sioux Falls paper, 2007.11.30].

You can read the full "Motion in Limine" at the PUC website. TransCanada argues that "no evidence related to these areas is relevant to the proceedings at hand. No statutory grant of authority has been made to the Public Utilities Commission for the airing, consideration or determination of any issues relative thereto."

I was hoping to find statute that would lay out exactly what the PUC is authorized to hear and not hear, but oddly, nothing in SDCL Title 49 jumped out as such a scope statement. I'm not convinced the PUC is even authorized to censor testimony in that fashion. Commission Dusty Johnson himself characterizes the coming PUC hearings as "an ad hoc quasi-judicial proceeding" [e-mail to Peggy Cooper, filed 2007.11.30 in the Public Comments and Responses portion of Commission Docket on the TransCanada pipeline], so such strict legalisms may not apply. Unless TransCanada can cite some specific statute, this amateur defender of law and freedom would suggest that our public utilities commissioners are free to listen to whatever testimony our citizens care to bring forward the next couple weeks pertaining to the merits of doing business with TransCanada.

TransCanada is trying to divide and conquer. Limit what each governing body can listen to, limit how often opponents can seek a fair hearing for their views, limit the opportunities landowners have to win their argument.

At the same time, TransCanada is trying to keep other non-energy-related issues on the record. In testimony filed 2007.09.21, TrasnCanada VP Robert Jones touts the property tax boosts and other economic benefits of the pipeline for South Dakota. If increased school funding and machinery rentals are relevant to the PUC hearing, then why not eminent domain?

The PUC is as entitled and obligated as the rest of us to look at the overall picture of what this pipeline will do to South Dakota. The commissioners have an obligation to protect the general welfare of the state, not just the expansion of public utilities, but the protection of constitutional rights. The PUC thus has every right to weigh all foreseeable advantages and disadvantages of the pipeline for South Dakota. That includes the tax benefits. That includes the temporary boost in jobs and construction-related business. And that includes the constitutional impact of letting a foreign corporation steal land from our citizens for private economic gain.