Qwest Fails to Fix Phantom Rings

Yeah, Ed, I'm talking to you. If you're done destroying your employees' morale, fix my #*¢$!^& phone!

I thought we had this problem licked. Alas, no. Here's the e-mail I just sent to the good people at the South Dakota Public Utilities Commission, who have tried in good faith to get Qwest to stop ringing my phone after midnight:

Dear Public Utilities Commission:

I regret that I must trouble you again. However, Qwest has failed to fulfill its statement that the problem of the phantom rings on my phone had been addressed by a repair test at the beginning of November. Ten minutes ago, at about 12:26 a.m. our corded phone emitted yet another phantom half-ring.

The problem now is not so much the annoyance as Qwest's consistent failure, over multiple years, to fulfill a simple request to remove the annoyance. I will contact the Qwest technician spoke with me and left a number on November 4. If there is any attention you can direct toward this matter (again), I will appreciate said assistance. Thank you.

Sincerely,
Cory Allen Heidelberger

Now, if anyone has the home phone number of Qwest CEO Edward A. Mueller, I'll be much obliged. The Muellers moved this summer, so don't send me the number their old multi-million-dollar country club mansion.

Chris Nelson Lands PUC Nod

Chris Nelson rides again! Governor-Elect Dennis Daugaard has named him as heir to Dusty Johnson's soon-to-be vacated seat on the South Dakota Public Utilities Commission.

After being term-limited out as Secretary of State and losing to Kristi Noem in the GOP primary for that U.S. House seat, Nelson has snagged a pretty nice consolation prize that will keep his brains and talent in Pierre serving the people.

But what's this -- no experience necessary?

Daugaard appointed Nelson despite the Secretary of State lacking any experience in the utilities industry, saying Nelson was the right person for the job.

"He's demonstrated time and again that he's willing to fairly interpret and apply our state laws without regard for politics," Daugaard said [David Montgomery, "Secretary of State to fill Johnson's PUC vacancy," Rapid City Journal, 2010.11.23].

No experience in utilities, and he gets the job? That's it—I am totally sending Daugaard a résumé. Make me Secretary of Education! I've at least been in a few classrooms! That's more experience than Nelson has for the job he just got.

The official Dems' line will surely echo what we heard from House Minority Leader Mitch Fargen yesterday on SDPB's Dakota Midday: same old bureaucracy, same old cronies.

But here's a more interesting narrative I see developing. Daugaard moves the chairs to give Dusty Johnson a better position from which to launch a statewide campaign... say, U.S. Senate in 2014. Daugaard finds a way to keep capable and decent public servant Nelson in the game. I see both of these moves as signals from the mainline South Dakota Republicans, the fellas who got a heck of a lot more votes than Rep.-Elect Kristi Noem did on November 2, that they're keeping their best guys in the chute for Tim Johnson's Senate seat. Noem won thanks to lots of outside Tea Party groups (and overheated conservative males searching "Kristi Noem bust" on Google Images) that pose a threat to the proper order of South Dakota Republicanism. The adults in the party aren't going to let that get out of hand.

My, we humans do tend to see patterns where there may be none, don't we?

Update 12:22 CST: The Dems' response, from party exec Erin McCarrick in a press release five minutes ago:

It looks like the Daugaard Administration is the new retirement home for State employees who are term limited or who have paid their dues to the Republican Party. How are we going to fix the huge budget deficit we are facing with the same players?

Just as many businesses are kept out of government contracts in Pierre through the no-bid process, possible qualified persons are being kept out of positions in Pierre. South Dakota should question the hiring process in Republican Administrations—are there no other qualified people in South Dakota, or do they already live in Pierre?

Johnson Outpolls Karpen 60-40 for PUC

The latest Madville Times poll shows perhaps predictable though not heartening results for Dems hoping to knock off a GOP golden dude and expand the Dems' bench here in South Dakota. I asked, "Who will get your vote for SD Public Utilities Commissioner?" From the poll's opening on Wednesday afternoon to closing at breakfast this morning, 129 of you eager readers gave a majority nod to incumbent commissioner and peppy Republican Dusty Johnson:

Dusty Johnson	77 (60%)
Doyle Karpen	52 (40%)

Votes: 129

Given a margin of error slightly wider than TransCanada's ability to accurately project oil spills, what might we read in these Sunday-morning tea leaves?

1. Incumbency has its advantages. In a poll on the Secretary of State's race, another statewide office that many voters ignore, Madville Times readers gave Democrat Ben Nesselhuf a 70–26 edge over the GOP's Jason Gant. Both of those candidates are state legislators seeking to replace the outgoing Republican Secretary of State. In the PUC race, Commissioner Johnson can point to achievements in the office he wants to hold for another six years. Evidently the "throw the bums out!" sentiment doesn't extend to Republicans on the PUC.
2. Commissioner Johnson's been fixing more phones than mine.
3. Even if the PUC can't do a thing to stop it, the Democrats out there who read this blog are still struggling to justify a vote for a county commissioner who thinks the Hyperion refinery will be "fantastic."

We've got more ballot to cover and big races to re-poll, so stay tuned for more chances to click your picks for November 2! Just four weeks to Election Day—goosebumps!

Vote Now: Who's Your Man for PUC, Dusty or Doyle?

Would you work hard to get the job of Public Utilities Commissioner? Fortunately for South Dakota, we have two guys for whom the answer is "Heck yeah!" Republican incumbent Dusty Johnson and Democratic challenger Doyle Karpen are both working hard for the chance to spend six years working on pipelines and power rates.

The Public Utilities commission does regulates your utilities, keeps telemarketers from bugging you, and advocates for good energy and telecommunications policy? Given the increasing centrality of energy and telecommunications to the economic health of our state, the job of Public Utilities Commissioner isn't just some boring down-ticket coin-flip race. Picking the right guy for this job matters.

So who's your choice: Dusty or Doyle? Vote now in the latest Madville Times poll, here in the right sidebar. The poll is open through breakfast Sunday, so tell your friends, and click your pick!

Karpen Lobbies Dems for PUC Nod; Where's Zaiko?

Doyle Karpen hits my mailbox, and the mailboxes of other Democratic convention delegates, to ask for our vote to make him the Democratic nominee to challenge Dusty Johnson for the Public Utilities Commission.

I've made clear that I have trouble getting excited about a Democrat (or anyone else) who calls the proposed Hyperion refinery "fantastic" and a "boon." So you can expect my read of Karpen's campaign literature to be less than favorable.

As I read his letter, the first thing I learn is the length of his marriage and the names of his wife, kids, and grandkids. Yes, yes, we all have wonderful families. Yes, I'm proud of my daughter, too, but that doesn't render my political judgment any more valid.

After ascribing his political activities to the inspiration of "the spirit of the pioneers who made our country great," Karpen gets down to the real résumé, citing his experience on township board, school board, and county commission. Interestingly, in discussing his tenure as a Union County Commissioner, he does not mention the words "Hyperion" or "refinery":

Being Chairman of the Union County Commissioners fostered in me the importance of allowing everyone the right to be heard while ensuring that the wishes of the majority are sustained. In the words of Thomas Jefferson, "The most sacred of the duties of a government is to do equal and impartial justice to all citizens" [Doyle Karpen, campaign letter to Democratic convention delegates, June 2010].

Well, at least Karpen is good at spin.

Karpen does mention Hyperion on his online résumé. Karpen says he "focused on laws and ordinances rather than emotions"... since, of course, if you oppose an unsustainable, polluting, economically unviable oil refinery, you're just being emotional.

I'm starting to worry that when Karpen talks about bringing "the pioneer spirit... back to the people of South Dakota," he's really talking code for letting big oil corporations pioneer their projects roughshod right over us natives (ah, just like the 1800s).

But where's our alternative? Challenger John Zaiko hasn't sent out similar mail. He did click "attending" on the Democratic convention Facebook page, so I'm hoping we can have a conversation in Sioux Falls Saturday... and maybe at least one interesting vote at the convention!

PUC Johnson Reads Blog, Gives Qwest What-For

My blog just earned its pay for the month... and so did Dusty Johnson!

Yesterday morning I vented about Qwest's inability or unwillingness to fix the midnight phantom ring on my phone. Yesterday afternoon, the phone rang. It was no phantom: it was Public Utilities Commissioner Dusty Johnson. I was out, but Commissioner Johnson told my wife the PUC had contacted Qwest and asked them to discontinue the test line to my house.

My wife and I stayed up late last night. No phantom ring.

One night is not proof—we've called Qwest previously, gotten assurances, then had the phantom rings return weeks or months later—but I called the PUC back this morning to thank Commissioner Johnson. That the Commissioner would take this action, without my even contacting him directly, demonstrates a sincere commitment to listening to and serving the public.

I'll still be voting Saturday to nominate John Zaiko (if he's still in!) to run against Dusty Johnson for PUC. But for now... keep up the good work, Dusty.

PUC Modifies Keystone XL Construction Conditions

Not a bad day in Pierre yesterday. The Public Utilities Commission made some changes to the construction permit for the Keystone XL pipeline. However, rather than giving me cause to rage against the machine, Commissioners Hanson, Johnson, and Kolbeck appear to have found some reasonable compromises to make most parties mostly content. Among the changes:

• TransCanada will cover reasonable costs of removing fossils or changing the pipeline route to avoid damaging them. Apparently the route goes through T-rex territory, so this is a big deal.
• TransCanada doesn't have to report every single spill of hazardous materials to affected landowners during construction. TransCanada wanted to exempt spills up to five gallons; the PUC set the minimum reportable spill at a pint.

Paul Blackburn, a lawyer for Plains Justice who defends landowner rights, sounds like he's o.k. with the fossil provisions. On spills, I'd say there's a big difference between five gallons and a pint. I could still do without Keystone XL altogether... but at least the PUC is keeping some reasonable conditions on the constuction.

PUC Discusses Easing Rules for TransCanada Oil Pipeline

The Public Utilities Commission meets today to discuss TransCanada's request that we change the rules to make it easier for them to run the Keystone XL pipeline through West River. TransCanada's request to cut corners is understandable, given that their Keystone projects are woefully overbudget, their partners are suing to get out of contracts, and their business model is drying up. SD Tar Sands has been doing a fine job covering why the PUC should not change the conditions already agreed to. And Rep. Frerichs reminds us that TransCanada freaks out when we try to change the rules on them for our own economic protection.

Besides, is this really the best time to talk about easing regulations on oil companies?

Commissioners Hanson, Johnson, Kolbeck—do the right thing. Hold TransCanada to the original deal. Protect our environment to the fullest extent possible.
-------------------------------
Somewhat related:

Government can and must play an appropriate role here. If a company was lax in its prevention practices, it must be held accountable. It is inexcusable for any oil company to not invest in preventative measures. They must be held accountable or the public will forever distrust the industry... [Sarah Palin, discussing BP's mess in the Gulf of Mexico, quoted by Mark Silva, "Sarah Palin: 'Drill Here, Drill Now,'" Chiacgo Tribune: The Swamp, 2010.05.03].

Palin still wants offshore drilling. However, someone who actually has to make tough governing decisions, Governor Schwarzenegger, is dropping drill baby drill from his vocabulary. He's more concerned about oil spills "destroying our precious ecosystem"... as ought be our PUC.

Zaiko Challenging Karpen for Dems PUC Nomination

"S.D. Democrats Hit PUC Snag"—why can't TransCanada be the subject of that sentence?

Snag? I disagree with Mr. Brokaw's headline characterization of John Zaiko's declaration he is still seeking South Dakota Democrats' nomination to challenge Dusty Johnson for his seat on the Public Utilities Commission. Mr. Zaiko's persistence is perhaps mildly bothersome to whoever decided to anoint Union County Commissioner Doyle Karpen as our nominee ten weeks before the convention. I, however, find notable pleasure in the opportunity to choose someone other than Hyperion-loving Karpen for this office. I also dig names with Z's. ;-)

I welcome Mr. Zaiko's candidacy and look forward to hearing him make his case in more detail. (In other words, John, put up a blog! Tell us what you stand for! Make the sale!)

PUC Votes Tomorrow on Keystone XL -- No Emergency Response Plan?

My friends (and yours!) at Plains Justice, the Sierra Club, and Dakota Rural Action are worried our Public Utilities Commission will vote tomorrow to approve TransCanada's Keystone XL pipeline without an emergency response plan. Their press release:

Keystone XL Pipeline Vote at PUC on February 18

Commissioners Expected to Approve Pipeline without Emergency Response Plan

WHAT: The South Dakota Public Utilities Commission (PUC) is scheduled to vote tomorrow (2-18-2010) on TransCanada’s proposed Keystone XL pipeline. Family agriculture and environmental groups expect the Commissioners to approve the pipeline without having seen an emergency response plan or an Environmental Impact Statement. Commissioners are also expected to direct PUC staff to prepare an order listing conditions of approval.

WHEN: February 18 (2:30 pm CT)

WHERE: South Dakota Capitol Building, room 413

To listen live over the Internet to the PUC meeting, go to http://puc.sd.gov/ and click the Listen LIVE link at the top of the page.

Agenda for the PUC meeting: http://puc.sd.gov/agendas/2010/0218.aspx

The Keystone XL pipeline, also known as the Keystone Gulf Coast Expansion Project, involves the construction of a 1,980-mile, 36-inch diameter tar sands crude oil pipeline that would begin at Hardisty, Alberta and extend southeast through Saskatchewan, Montana, South Dakota and Nebraska. It would incorporate a portion of the Keystone Pipeline and deliver tar sands crude to existing terminals in Nederland, Texas to serve the Port Arthur, Texas oil market, with a 50-mile spur supplying the Houston, Texas oil market.

TransCanada has asked the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to allow them to operate this pipeline at 80% of the maximum burst pressure instead of the standard 72% in areas of “low consequence” including much of Montana, South Dakota and Nebraska. If PHMSA grants this request, TransCanada will be allowed to use cheaper, thinner pipe than they are required to use in more densely populated areas. This heightens concerns regarding threats to public health and property because of pipeline leaks, explosions and spills.

Each year there are over 150 incidents related to oil pipelines - with more than 6 million gallons of dangerous liquids spilling and leaking annually. Between 2002 and 2005 more than 50 pipeline incidents were serious enough to warrant public evacuations.

As of today there is no Environmental Impact Statement or emergency response plan for Keystone XL. Is it prudent for the SD PUC to permit this project under these circumstances?

It is reasonable and appropriate to question the business plan of the XL pipeline. Will this project remain profitable and viable? Is the PUC permitting a pipeline of questionable value and necessity?

Oil executive, Patrick Daniel, CEO of energy company, Enbridge Inc., has recently questioned the economic viability of Keystone XL, stating that the XL pipeline would create an over capacity in the pipeline system serving the Alberta tar sands area.

Stay tuned for your elected PUC's vote tomorrow....

Strong State Policies Mean Support Renewable Energy: Pass Those PUC Rules!

The PUC may have just gotten a some slam-dunk help from the feds to promote its Small Renewable Energy Initiative. The U.S. Department of Energy's National Renewable Energy Laboratory just issuedits 2009 State of the States report. Among the key findings: states that have passed renewable energy portfolio standards and net-metering policies have generally seen more progress in developing renewable energy.

Even though South Dakota is among the handful of laggards on such policies, 50% of South Dakota's electrical production comes from renewable sources (see Table 2.1 in the PDF report). 47.5% comes from the dams the feds built for us on the Missouri. (But remember, we consume more juice than we produce, and we import lots of smoky coal power from Wyoming and North Dakota.)

And even without strong state policies, we lead the nation in growth of non-hyrdo renewable electricity generation, a whopping 17,000% from 2001 to 2007 (see Table 2.4). But huge growth numbers are easy to achieve when you start from almost zilch: wind generation in 2007 still provided just 2.4% of our total electricity production (Table 2.17). 5.5% of Iowa's electrical production came from wind; in Minnesota, that figure was 4.8%. And we're still only 19th in the nation for total wind generating capacity; the top four states are Texas, Iowa (15 times our capacity), California, and Minnesota (9 times our capacity). Declining output from the dams meant South Dakota saw an overall decrease in renewable enrgy output of over 10% from 2001 to 2007; over the same period, 35 states, including all of our neighbors except Nebraska, saw growth in their renewable electricity production (Table 7.5).

Compared to Minnesota and Iowa, South Dakota is woefully behind on passing policies that support renewable energy development (see Table 3.1). NREL finds that, among other things, net metering policies and even green power mandates (that's more than what the PUC is asking for) produce faster renewable enrgy adoption. According to the NREL report, we could boost our clean energy percentages faster and catch up with those darned Minnesotans and Iowegians if we got with the program and passed rules like the PUC's proposals for small renewable generation.

Read the report yourself—I'm sure our friends Dusty, Steve, and Gary will! It's chock full of tables (101!) for your number-crunching enjoyment.

PUC Promotes Distributed Power Generation, Clean Air, Clarity Online

Darn near had to invoke open meetings laws here yesterday: South Dakota Public Utilities Commissioner Dusty Johnson dropped by to boost small wind and distributed generation (read more on the PUC's Small Renewable Energy Initiative... and Russ, you'd better be voting for this!).

Commissioner Steve Kolbeck very generously shared his time (and studiously followed the comment nymity policy!) to explain his comment about how Big Stone II could have led to a net decrease in air pollution around Big Stone Lake and the Whetstone Valley. Evidently the Big Stone II backers were voluntarily offering to upgrade Big Stone I to win regulatory support for the new coal plant. If that's the case (and Minnesota Clean Water Action wasn't convinced), I'm surprised that the BSII artists didn't make bigger hay of that point in their press to persuade us hippies that BSII would indeed have been good for the earth.

Of course, now that BSII is dead, Otter Tail, MDU, and Northwestern could still carry out those upgrades and really clean up the air around Big Stone.

Now if we could just get Commissioner Hanson to drop by, we'd have a full house!

Madden Report Misses Distress Among Keystone Pipeline Neighbors

Report Also Finds Going Rate for Land Rights:
$40,000 per Mile

The South Dakota Public Utility Commission begins its hearing today on the Keystone XL pipeline permit. A public input session tomorrow (Tuesday) evening at 6 p.m. will be part of a week-long process in Room 414 of the State Capitol Building in Pierre.

The state appears ready to propagate the illusion that another strip of sovereign Canadian territory across South Dakota is hunky-dory. SD Tar Sands Pipelines highlights a report submitted to the Keystone XL docket by economist Michael Madden on behalf of the state. Dr. Madden assesses the socioeconomic impacts of the Keystone I pipeline TransCanada is currently completing in eastern South Dakota. Somewhat maddeningly, Dr. Madden finds that among farmers he interviewed near the pipeline route he didn't get to have the project on their land, "it was sensed that there was feeling of lack of good fortune on their part." He finds "no major worry road rehabilitation would not be performed by the company" [p. 13].

Dr. Madden evidently avoided speaking to Mike and Sue Sibson—"pipeline shoved up my..." doesn't strike me as an expression of "good fortune." Dr. Madden also apparently didn't catch the KDLT story (now deleted—evidently KDLT can't afford the server space to archive a few kilobytes of text each week) about TransCanada tearing up roads and dragging its feet on repairs in Beadle County. (For more on road concerns, see the Beadle County Commission minutes from July 30.)

But let's back up. Where did that "lack of good fortune" comment come from? Dr. Madden appears to have discovered how much money it took to keep landowners quiet and perhaps make other neighbors wish they could have cashed in on black gold and perpetual environmental disruption. While landowners were bound to secrecy by confidentiality agreements with TransCanada, Dr. Madden appears to have wheedled from at least a few of his interviewees some numbers.

Although exact numbers were not easily acquired from those interviewed, it appears that in the area where these interviews were conducted a typical access easement involved a payment of approximately $40,000 per mile of land. In addition ample mitigation has been arranged for loss ofcrop or grassland production for the interruption in production caused by construction activity and post-construction restoration. No one interviewed indicated that the amounts involved were unfair. In talking to other farm operators who lived near the project, but had no land on the corridor, it was sensed that there was feeling of lack of good fortune on their part [Madden report to PUC, p. 13].

$40,000 per mile. Given a 150-foot construction easement, that's $2,200 per acre. Compare that to $1,863–$2,634 ag land values, depending on the neighborhood.

But here's the real kicker: $40K per mile, across about 220 miles through eastern South Dakota. Total TransCanada would be shelling out to our landowners by Dr. Madden's estimate: $8.8 million... the current price of the amount of oil that will shoot through the Keystone pipeline every four and a half hours.

Looks to me like TransCanada bought its way across our state with payments hardly bigger than rounding error on their final balance sheet.

Why am I not feeling good fortune?

Dusty Johnson Plugs in PUC Re-Election Campaign

Dusty Johnson gives his local paper the scoop, telling Seth Tupper he's running for re-election to the Public Utilities Commission next year. Among the lines Johnson has ready for the run:

• On TransCanada's Keystone pipelines: "I’m not a cheerleader for that kind of development, but I do want to make sure it gets done right if it’s going to get done.... Those are hard decisions, and I think we’ve done a good job. But managing growth is always difficult.”
• On wind power, Johnson notes that by the end of his second term, South Dakota will have 15 times more wind-energy development than it did when he started the job back in 2005 (that's impressive!).
• On sticking with this job instead of seeking higher office: Johnson says he doesn't want to spend more time away from his family (even I say a big mushy aaawwww! to that). Besides, he likes his job: "Energy issues are a really big deal in this country right now. I’ve got a job that is very interesting and that I love, and that I feel has a big impact on people’s lives."

And don't think the PUC race will be the undercard event no one pays attention to. Commissioner Johnson thinks he won't be the only one running: “Because this has been a front-row seat to the energy issues that have been so hot, particularly in the last few years, a lot of people view this as a job where you can make a big difference.”

Let's hope he's right: a vigorously fought campaign for PUC would bring to the fore a valuable discussion about wind power, TransCanada, Big Stone II, and the energy future of our state and our nation.

PUC Chills Citizen Activism with Burdensome Information Requests

Mr. Mercer notes that Dakota Rural Action has failed to meet another deadline in submitting pre-filed testimony on the Keystone XL pipeline docket. Mercer cites a letter from PUC staff attorney Kara Semmler that says DRA may request postponement of the upcoming November hearing, a change Semmler says may be impossible.

To understand what's taking so long, perhaps we should go back to June and the Interrogatories and Request for Production of Documents Ms. Semmler sent to Dakota Rural Action. On June 3, 2009, Semmler, on behalf of the PUC, gave DRA 26 days to submit the following information for HP09-001, the Keystone XL docket. As you read these "requests" (quoted verbatim), ask yourself what relevance each point may have to permitting the Keystone XL pipeline:

1. Describe Dakota Rural Action's business structure.
2. Describe Dakota Rural Action's business relationship with Plains Justice.
3. How many members does Dakota Rural Action have?
4. How many members own property crossed by the TransCanada Keystone XL pipeline (herein "pipeline")? List the names and addresses of those members.
5. How many members are located within one half mile of the pipeline? List the names and addresses of those members.
6. How many members will have a pumping station located on his or her property? List the names and addresses of those members.
7. How many members are interveners in HP09-001? List the names of intervener members.
8. Provide a copy of all correspondence from your members regarding this pipeline.
9. Provide all records of telephonic or other verbal communication with members regarding this pipeline.
10. What is Dakota Rural Action's mission statement or goal?
11. Identify any membership meetings or other types of meetings scheduled by or through Dakota Rural Action at which this pipeline was discussed.
12. Provide a copy of any correspondence you sent members or non-members regarding this pipeline. Provide a copy of all mass mailings as well as individually addressed letters. Specify whether the mailings were sent to members only.
13. Provide a copy of all newsletters or other information published or created by Dakota Rural Action regarding this pipeline.
14. Has Dakota Rural Action polled or otherwise communicated with its membership to determine what percentage support and what percentage oppose this pipeline? If so, provide the results.
15. For the past two years, list all legal processes, administrative and otherwise in which Dakota Rural Action has participated.
16. How does Dakota Rural Action determine what legal or other process to become involved [sic]?
17. The applicable applicant burden of proof reads as follows... [see SDCL 49-41B-22]... Specify particular aspect(s) of the applicant's burden of proof for which you intend to provide testimony and evidence. Provide Dakota Rural Action's position regarding said aspect.
18. State Dakota Rural Action's position regarding "terms, conditions or modifications of the construction, operation, or maintenance." See SDCL 49-41B-24 and 49-41B-36.
19. List with specificity the witnesses Dakota Rural Action intends to call. Please include, name, address, phone number, credentials and area of expertise.
20. Do you intend to take depositions? If so, of whom?
21. As an ongoing request, provide Commission Staff with a copy of all data, documentary or interrogatory requests you send any party to this docket along with its complete answer to such request.
    
    —Kara Semmler, staff attorney, Interrogatories and Request for Production of Documents, South Dakota Public Utilities Commission, 2009.06.03

Now I've never been party to a PUC docket, so I can't speak with authority about the normal scope of interrogatories addressed to interveners. I haven't seen the interrogatories the PUC sent to TransCanada, the entity actually seeking to disrupt land and property rights in South Dakota, so I can't compare the burden placed on other parties to this docket.

In its formal response, Dakota Rural Action argues the PUC's interrogatories are a burdensome and occasionally unconstitutional fishing trip. In twenty-plus pages, DRA offers the following objections (I paraphrase):

• Some requests improperly seek private, confidential information.
• Some requests seek information irrelevant to the docket that could not produce evidence admissable in the PUC hearing.
• The PUC fails to offer the "threshold showing of relevance" required by precedent to justify its seemingly extraneous requests that do not touch on "facts related to the Proposed Pipeline or its impacts."
• Quoting from case law, "no overbroad or 'carte blanche' disclosure, unduly burdensome or lacking in specificity, should be allowed."
• The requests in total are "unduly burdensome, expensive, oppressive, [and] excessively time-consuming."
• The disclosure and publication of member names and addresses violates the First and Fourteenth Amendments.
  
• Disclosure and publication of member information and internal communications have a chilling effect on freedom of association and free speech.

I find the chilling effect particularly disturbing. Suppose you're a member of a group that advocates certain policies in Pierre—Dakota Rural Action, South Dakota Retailers, whatever. Suppose your organization told you it would be recording every call you make to your organization's officials and archiving every e-mail you send for possible publication in government proceedings. I don't think it's a stretch to say a lot of members would avoid calling or writing... or even sending in membership dues.

Even from a practical perspective, the PUC's interrogatories threaten to chill citizen activism. Suppose you're working for a local non-profit advocacy group, or you're just a concerned citizen trying to speak up for your neighbors. In this case, you're busting your chops researching oil pipelines, right-of-way proceedings, environmental and economic data, and other relevant and complicated information. You're spending your spare time—or your spare change hiring a lawyer or two to help you—trying to put together a case that can reasonably compete with the attorneys and experts that a multi-billion-dollar corporation has at its disposal.

In the middle of that process, the state calls and asks you to turn your file cabinets inside out for them. Whether you submit to the request and turn over stacks of private information or work up a solid legal argument to protect your and your neighbors' constitutional rights, your workload just doubled. And every dollar and hour you spend on that task is a dollar and hour you can't spend building your case that permitting the pipeline does not serve the public interest.

Citizen activism is already hard enough. If the PUC can erect further barriers like the information requests it made of Dakota Rural Action, even more citizens and organizations will back away from public activism. That will leave public decision-making all the more in the hands of the well-moneyed and well-lawyered.

While R. Blake Curd and his Tea Party friends are dressing up in tri-corner hats and re-enacting their personal mash-up of the Cold War and the Revolutionary War, and while South Dakota conspiracy theorists like Lori Stacey are fighting the Illuminati, groups like Dakota Rural Action are fighting real battles, against real threats, to protect the rights of South Dakotans against encroachment from big corporations (and in this case, a foreign corporation).

And our own state appears to be sandbagging citizen groups with impractical and unconstitutional legal demands.

Dusty Johnson, the Public Interest... and a Bigger PUC?

By the way, Public Utilities Commission Dusty Johnson is holding a remarkable public conversation right here in the Madville Times comments section. He and Kelly Fuller from Plains Justice* are having a civil and intelligent discussion about differences between our PUC and similar bodies in other states. The discussion touches on administrative law judges, consensus decision-making, and even the proper size of the PUC—Fuller contends with so many telecom projects and ever bigger energy projects on the way, we may need to expand the commission.

If you'd like to join in, further comments are welcome on that post.

*Update: Kelly Fuller offers a useful note below. She happens to work for Plains Justice, just as I happen to work for Dakota State University (and by extension, for you, the good people of South Dakota!). But those professional associations do not mean that our personal views are the views of the folks we work for... just in case anyone was unclear on that.

From the Comments: Dusty Johnson Lets Me (and Bloggers) Have It

South Dakota Public Utilities Commissioner Dusty Johnson wins promotion from the comments section with this stern chastisement of my political hyperbole. In my Thursday commentary on the PUC's decision to compel TransCanada to give Dakota Rural Action more information on its Keystone XL pipeline plans, I made the following offhanded comment:

Dang—either Dusty Johnson is running for higher office next year, or the PUC is realizing we South Dakotans really do need to make stronger demands of TransCanada to protect our natural resources from the short-term thinking of Big Oil.

Commissioner Johnson checks in to register his displeasure, not so much at the fact that I give him heck even when the PUC does something I like (and he would be entitled to that complaint as well), but that I would accuse him of putting political games above the law:

Cory,

I'm more than a little disappointed you insinuate my votes on legal matters are based on political calculation, rather than on what the law says.

I haven't given you an reason to think so little of me, you know. We've had an open and honest exchange of ideas when we've spoken. I know it's fun to play politics, but I expected more of you.

The truth is that the PUC has never (when I've been around) ruled that information on decommissioning was inadmissable or wasn't subject to discovery. We've taken that view with Keystone, with windfarms, with natural gas power plants, and with everything else. Additionally, whether or not information is subject to discovery is a technical legal issue. I know it's more fun for bloggers and political operatives to presume that politics is the big engine that powers all decisions made by anyone, anywhere, but that isn't the case.

When the law is on DRA's side (and it was most of the time on Tuesday), they'll win. When it isn't, they'll lose. Pretty simple, actually.

- Dusty Johnson [2009.09.26]

Commissioner Johnson makes a perfectly sensible complaint. He says the same thing that I've said, essentially, about my positions and proposals on the Lake Herman Sanitary District board: that my decisions are strictly in accord with the law and good public policy. I get owly when folks (including my fellow board member Larry Dirks) have imputed selfish motives to my public policy-making actions; Commissioner Johnson's owliness is justified (and he doesn't make a ruckus in the library to do it).

This scolding reminds me of things I've said about Congresswoman Stephanie Herseth Sandlin. I've not been kind to her this summer. I've criticized her for votes that look like they are more in the interest of campaign donors than the general public. She has elsewhere called such accusations "ridiculous."

Are we bloggers too cynical? Are we too quick to ascribe the worst intentions to our elected officials? Are we just playing word games, taking digs to stir controversy where good public servants are just doing their jobs? I welcome further discussion....

By the way, you can get the straight poop on South Dakota energy policy from Commissioner Johnson Tuesday in Mount Blogmore's first ever live chat.

What Happens to TransCanada Pipeline After Oil? DRA and PUC Take Long View

Oil won't last forever, not even the goop in the Alberta tar sands. So that big Keystone pipeline tearing up eastern South Dakota and its bigger sister Keystone XL planning to do the same to West River won't always have oil coursing through them. Someday the oil and the operating revenue will dry up, and TransCanada will flip the switch and walk away.

Dakota Rural Action offers a summary of the problems that can arise when pipelines are abandoned:

Once pipelines are no longer in use, the electrical systems that are meant to keep the pipes from corroding are turned off, and pipelines rust more quickly, with the result that large pipelines may weaken and collapse under the weight of vehicles. They may also develop holes that allow soil to fall inside the pipe, forming sinkholes in the soil over the pipeline. Buried pipelines may emerge from the soil creating an obstacle and eyesore. Abandoned pipelines may also need to be removed before construction of buildings, and they can interfere with other development of property. In addition, they may contain crude oil residues that would need to be cleaned up [Dakota Rural Action, press release, 2009.09.22].

So how much will it cost to remove or stabilize Keystone XL when TransCanada abandons it? Would you believe TransCanada has thus far declined to say? DRA asked TransCanada for pipeline abandonment information last month, but, says DRA, "TransCanada did not voluntarily provide this information."

DRA says that Canada is starting to require pipeline companies to set aside money to cover the cost of dealing with abandoned pipelines. The United States, however, has not yet imposed any such requirements. Conceivably, TransCanada could lay its pipe, pump its oil, and then just walk away, leaving us landowners and taxpayers to remove contaminated soil and fill sinkholes. Nice.

Dakota Rural Action members (myself included) find this lack of planning for the future unacceptable. Tuesday's DRA press release includes these comments from South Dakota stewards of the land who can take the long view:

“My great grandfather settled here in 1910. He had a plan and vision to protect and nurture this land so it would be productive for generations to come. That plan has been carried out by my family for nearly 100 years,” said Roger Gunderson, a Dakota Rural Action member who ranches in Harding County. “I find it hard to believe that a company like TransCanada does not have a responsible business plan that it can share with us as to what they intend to do with the pipeline when it is no longer in use."

...“We’re the third generation on our land and we’re about to bring the fourth generation in to join us. As a family who’s ranched on this land for 75 years and taken good care of it, we want to know what would happen once TransCanada stopped using the pipeline. Would they treat the land right? Would we get stuck having to clean up after TransCanada?” asked Sandy and Jacki Limpert, Dakota Rural Action members from Harding County.

DRA asked the South Dakota Public Utilities Commission to take the long view and require TransCanada to do the same. In response, the PUC has indeed voted to compel TransCanada to give more information on its pipeline abandonment plans, as well as "monitoring, maintenance, crude oil composition, and the possible volume of a worst-case scenario oil spill" [DRA press release, 2009.09.23].

Dang—either Dusty Johnson is running for higher office next year, or the PUC is realizing we South Dakotans really do need to make stronger demands of TransCanada to protect our natural resources from the short-term thinking of Big Oil.

Read more on the legal complications of reclaiming abandoned pipeline and rights-of-way: David Howell, "Who Owns Abandoned Pipelines?" Pipeline & Gas Journal, August 2009.

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p.s.: For those of your conservatives who think President Obama and his eco-Marxofascists are determined to destroy America's economy and petro-security, note that the Obama Administration's State Department approved the Alberta Clipper tar sands pipeline to Wisconsin last month:

While U.S. environmental lobbies such as the Sierra Club were protesting against Prime Minister Stephen Harper's mission to Washington last week – accusing him of “dirty-oil salesmanship” – the U.S. President's new special envoy on energy, David Goldwyn, was in Ottawa telling officials that Canada is a “pillar of U.S. energy security.”

“Part of my message here is that we recognize and value the centrality of Canada's contribution to U.S. energy security,” Mr. Goldwyn, the U.S. State Department's newly appointed co-ordinator for international energy affairs, said after the meetings.

It will be up to Canada, he said, to figure out how it can expand the high-emissions oil sands without exceeding targets in greenhouse-gas reductions, either by reducing emissions in other sectors or developing new technology [Campbell Clark, "Alberta's 'Dirty Oil' Suits U.S. Security," The Globe and Mail, 2009.09.24].

Looks like I've got some convincing to do even in my own party.

PUC Gives DRA Two Weeks to Dig on Keystone XL

Small victory for my friends at Dakota Rural Action: the Public Utilities Commission has cut them some slack and given them two extra weeks to gather information and file testimony in the Keystone XL permit process. TransCanada has been dragging its feet in the discovery process, stalling, filing objections, sandbagging DRA's lawyers by dropping a couple big boxes of documents on their doorstep just before the original PUC filing deadline of September 8. The PUC gave DRA two weeks, but left the door open for DRA to request further extensions if TransCanada keeps pressing procedural issues. The PUC will also consider extending TransCanada's rebuttal timeframe.