KXL Opponents Object To Fiegen Absence At Weeklong Hearing

Pipeline opponents raised objections to the absence of one Public Utilities Commissioner at a Keystone XL pipeline hearing that started Monday morning in Pierre.
Attorney Paul Blackburn, representing Bold Nebraska, says state law requires that absent commissioner Kristie Fiegen be replaced with a Governor’s appointee.
Fiegen has been undergoing treatment for breast cancer, a fact she has made public. She intends to review a complete transcript of the hearing or listen to audio of the entire hearing after she has recovered from treatment.
Blackburn’s concerns were echoed by other interveners.
They say when a board member is incapacitated, he or she must be replaced. They indicated Fiegen’s recovery time is an unknown, and they questioned whether reading a transcript or listening to audio will allow Fiegen to fully assess the validity of testimony.
But PUC’s attorney and hearing examiner, John Smith, says state law supports Fiegen’s decision and that it’s up to her to determine if she’s incapacitated.
TransCanada lawyer William Taylor agrees
“With all due respect to the interveners, [SDCL] 49-1-9 contemplates that Commissioner Fiegen will make the decision on whether she is incapacitated unless there is some showing that she is unable to make that decision on capacity,” Taylor said. “She has made that decision that consistent with the Administrative Procedures Act, she will read and certify rather than appear at the hearing. We think that is totally appropriate. It’s a decision that she must make. When she’s ready to read and certify, she can read and certify, and she may be ready to listen to part of the hearing as it’s conducted. That’s her decision. We’re here. We’re ready. Let’s go.”
The two remaining PUC commissioners supported Fiegen’s decision to deliberate at a later date.
Chairman Chris Nelson says he doesn’t want to share the details of Fiegen’s medical care, but he’s confident that she is doing well and moving toward recovery.
The hearing is held to determine if TransCanada can meet requirements for a permit to build the pipeline across South Dakota. The PUC approved the permit in 2010, but since TransCanada didn’t build the pipeline within four years, the company has to certify that its situation has not changed.
The hearing continues through this week and into next week.