Arielle Zionts
Rapid City Journal

RAPID CITY, S.D. (AP) — Gov. Kristi Noem and South Dakota's congressional delegation are criticizing President Joe Biden's decision to cancel a permit needed to build the Keystone XL pipeline while a coalition of Indigenous people, environmental activists and some rural landowners are celebrating.

TC Energy and supporters of the pipeline are hoping Biden will change his mind by viewing the pipeline as progressive when it comes to labor and the environment.

"I'm very disappointed," Noem said. "I think it's the wrong policy on energy, it's the wrong policy on the environment, and it's the wrong policy on safety. Over the years we've debated this pipeline and vetted it on all of those elements."

Meanwhile, opponents say they will continue to fight for climate justice and possibly even against the KXL Pipeline since it's unclear whether TC Energy will pull the plug on the project, fight it in court, or wait four more years in the hopes of there being a new president who supports the pipeline.

"It is rare that a promise to our people is kept by the United States," Harold Frazier, chairman of the Cheyenne River Sioux Tribe, said in a news release about Biden keeping his campaign process to shut down the pipeline.

In this Feb. 28, 2017, file photo, Chairman Harold Frazier of the Cheyenne River Sioux Tribe leaves federal court in Washington. South Dakota Gov. Kristi Noem appeared headed Monday, May 11, 2020, for a legal confrontation with two Native American Indian tribes over highway checkpoints intended to keep the coronavirus away from their reservations. Both tribes said over the weekend the checkpoints would stand on their reservations. “We will not apologize for being an island of safety in a sea of uncertainty and death,” Frazier said in a statement. (AP Photo/Cliff Owen File)

Oscar High Elk, who is part of a small protest camp near Philip, said he now wants to see all infrastructure, including a nearby work camp and pump station, removed so the land can be restored.

"The camp will remain until we confirm all KXL construction sites have been shut down and the pipes removed," he told the Journal.

TC Energy is likely deciding whether to scrap the project or hope for a new president in the next four years since it's not likely to change Biden's mind or find success in the courts, according to two professors at the University of South Dakota.

"There's not going to be a political route" and "I don't see much of a chance at all" legally speaking, said Sean Kammer, who specializes in natural resources law.

The company needs to make "a judgment as to what the 2024 election would be and who might win versus the present value of pulling up the price of the pipes between now and then," said Michael Card, an expert in South Dakota politics. The price of oil is low right now and tar sands extraction is a more expensive method of obtaining oil, he said.

The battle over the $8 billion pipeline began when the Canadian-owned TC Energy proposed the project in July 2008, according to a CTV news timeline.

In this Feb. 18, 2020, file photo, a protester plays a drum and sings while joined by other Native American protesters opposing the Keystone XL Pipeline at the South Dakota Capitol in Pierre. Major construction projects moving forward along the U.S. borders with Canada and Mexico amid the coronavirus pandemic are raising fears workers could spread infections within nearby communities, including several Native American tribes. (AP Photo/Stephen Groves)

Since then, the pipeline has been presented to three presidents and been subject to protests and lawsuits filed by TC Energy and opponents.

If built, the pipeline would run 1,200-miles from the Alberta tar sands in Canada to Nebraska, entering South Dakota at a spot 32 miles northwest of Buffalo. It would run southeast through Harding, Butte, Perkins, Pennington, Haakon, Jones, Lyman, Meade and Tripp counties before exiting about 20 miles southeast of Colome. The oil would be then be transferred to another TC Energy pipeline before being shipped to the Gulf of Mexico.

TC Energy made progress in obtaining the various approvals and studies it needed but President Barack Obama declined in January 2012 to sign the presidential permit required for projects that cross the border. He and his administration blocked the pipeline in other ways throughout his terms.

President Donald Trump promised to approve the pipeline during his campaign, signed an order in favor of the project in January 2017, and issued the presidential permit in March 2019.

Justin Trudeau, the Canadian prime minister, urged Biden to approve the pipeline when they spoke on the phone in November.

Jan. 17, three days before President Joe Biden's inauguration, TC Energy announced its commitment to using union labor, achieving net zero emissions, and being powered by renewable energy.

The company sent a newsletter arguing the project aligns with Biden's labor and environmental goals and asking supporters to contact their political leaders.

Two days later, South Dakota Rep. Dusty Johnson and Sens. John Thune and Mike Rounds sent a letter to Biden citing TC Energy's talking points and asking him to approve the pipeline.

"The Keystone XL pipeline of today is not the same project first reviewed by the Obama administration," they wrote.

Senate Majority Whip John Thune, R-S.D., speaks with reporters after a Senate Republican weekly luncheon on Capitol Hill in Washington, Tuesday, May 19, 2020. (AP Photo/Patrick Semansky)

Soon thereafter, TC Energy announced that it would be halting all construction in anticipation of Biden cancelling the permit, which he did on his first day in office.

Construction of the pipeline halted in April 2020 after a federal judge canceled its water-crossing permit but TC Energy has been building work camps, pump stations and other infrastructure. South Dakota passed legislation targeting violent or civil disobedience protests while the Department of Public Safety and sheriffs have been having regular meetings to prepare for illegal activity since 2017, according to DPS spokesman Tony Mangan.

Biden's decision overturned "an unprecedented, comprehensive regulatory process that lasted more than a decade and repeatedly concluded the pipeline would transport much needed energy in an environmentally responsible way while enhancing North American energy security," TC Energy said in a news release. Construction is being suspended and thousands of workers will be laid off, it added.

"TC Energy will review the decision, assess its implications, and consider its options," the release said.

The Journal asked TC Energy about its next steps, how the permit cancellation will impact profits, what kind of workers will be laid off and which will stay on the job, and whether security guards will remain at completed or in-the-works construction sites. Spokeswoman Sara Rabern declined to answer these questions, saying the company is not commenting beyond its news release.

"This pipeline is not only just creating jobs and helps us secure an affordable energy supply, it also is safer for our environment," Noem said. "History has proven over and over again that the way we are transporting our energy supply today is compromised in many ways and it would be safer through a pipeline" than on trucks and trains.

"We'll continue to have conversations with the (Biden) administration," she said. "I'm not certain if we have other options at this point. It still continues to remain a priority for me."

Thune said in his weekly column that he's disappointed Biden yielded to the "far-left" and "extreme environmental" wings of his party on his first day in office. Even Trudeau, "a staunch liberal," supports the project as part of Canada's clean energy roadmap, he said.

"The Biden administration is determined to transition away from oil and gasoline, but that is not something that can be done overnight," Thune said. "Cancelling this project ignores the reality of our nation's energy demands and denies a timely conversation about infrastructure modernization."

Thune agreed with Noem's arguments about transport safety and the project already going through many reviews. He said the pipeline would bring up to 4,000 good paying jobs to South Dakota and $100 million in taxes each year that would be reinvested into the state.

Many Native American citizens and nations, environmentalists and some rural landowners are opposed to the pipeline because they want to move toward renewable energy sources and are concerned oil spills would impact land and drinking water.

There are concerns about an influx of mostly male workers bringing crime to nearby small towns and reservations, something that happened with the Bakken region of North Dakota and Montana. Some are also opposed to the pipeline since it's being built through land promised to the Oceti Sakowin in now-broken treaties.

The ACLU of South Dakota, Dakota Rural Action, the Lakota Law Project and NDN Collective all shared press releases praising Biden's decision. So did the Oglala, Cheyenne River and Standing Rock Sioux tribes.

"The cancellation of the Keystone XL pipeline permit sends a strong message to tribal nations, and symbolizes a willingness to build on government-to-government relationships established through our treaties," Oglala Sioux President Kevin Killer said in a news release.

Kevin Killer, newly elected president of the Oglala Sioux Tribe. (photo courtesy Kevin Killer)

Many of the statements credited Indigenous leadership for putting pressure on Biden to cancel the permit while stressing there are still other pipeline and environmental battles to be fought.

"I want to honor decades of work led by Indigenous grassroots organizers," said Jade Begay of NDN Collective. "Because of them, KXL has been defeated not once but twice, and future generations will have a safer planet because of their determination."

"Let this be a warning to the fossil fuel industry that when you come into Oceti Sakowin lands, you will be met with resistance, organized power and a spirit of a people who will never be broken," said Nick Tilsen, CEO of NDN Collective.

Tilsen and High Elk said new priorities include shutting down the Dakota Access and Enbridge Line 3 pipelines.

Candi Brings Plenty, Indigenous Justice Organizer at the South Dakota ACLU, told the Journal that the movement will continue to follow the lead of grassroots climate activists while pushing tribes to adopt fossil free energy.

Kammer said he doesn't see any political solution for TC Energy while Card said the company could try to convince Biden to change his mind by arguing it's worker and eco-friendly.

TC Energy would need to "come to some form of compromise and suggest things they might be willing to do that would help the president out" Card said. "I don't know that it would sway him because of the impact that starting the project would have on his younger base who could say 'we told you so, we should have gone with Bernie'" and because he will be "perceived of being as a flip-flop."

Plus, the fact that Biden canceled the permit on his first day in office signals that this is a strong policy he believes in, Card said.

The company could wait and see if the House and Senate flip red in two years, Card said. Theoretically, a veto-proof Republican majority could create a law taking away the presidential permit power from the president and giving it to Congress, which would then vote to approve the permit.

Even though Keystone XL passes through South Dakota, there is little the state can do except try to convince Biden to change his mind, he said. The legislature could pass a resolution condemning Biden's decision but it would hold no real power.

TC Energy and opponents have filed "plenty of litigation" challenging administrative and procedural steps at the state and federal level, Kammer said. "It's the presidential permit that is kind of the unique animal, legally speaking."

He said most experts believe Biden can't be sued over his permit decision since the process isn't subject to administrative laws like state permitting or the federal water crossing permit.

Kammer said he even doubts that TC Energy could sue for property loss or economic damages since "the permit they had (under Trump) contained an expressed provision that it was revocable."

He said the only legal route might be through the United States–Mexico–Canada Agreement.

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