South Dakota denies second carbon dioxide pipeline in a week

Commissioners canceled a hearing scheduled to begin Monday after they heard the application submitted would violate county ordinances.

The South Dakota Public Utilities Commission denied a company’s application to construct a carbon dioxide pipeline on Monday.

Commissioners canceled a three-week hearing scheduled to begin Monday after they heard the application submitted by Summit Carbon Solutions would have violated county ordinances.

Members unanimously voted to deny the application for a permit.

The pipeline would have extended approximately 2,000 miles and transported CO2 from over 30 ethanol plants across five states, including seven plants in South Dakota, to underground facilities in North Dakota.

Commission staff member Kristen Edwards said one statute specifically prohibits the commission from issuing a permit for a route that violates a county ordinance.

“There is no discretion within that requirement,” said Edwards. “Summit’s route violates county ordinances. And without preemption, which Summit is no longer requesting, there is simply not a path forward.”

Brian Jorde, an attorney representing landowners affected by the pipeline, agreed with Edwards' assessment.

“It is a big decision but it’s actually a simple decision based on the facts and the law before you,” Jorde said. “49-41B-28 precludes the commission from ‘designating a route which violates local land use zoning, or building rules, or regulations, or ordinances.’ They’re asking you to do an impossibility. It cannot be done.”

Legal representatives for Summit said when the project for the pipeline was first designed, it was done in compliance with existing state law at the time.

“Opponents to this project had to change the law in order to bring us to this point this morning. Opponents had to do that,” said Summit attorney Brett Koenecke.

Koenecke said there was broad support for the pipeline, and of the 18 counties the project would go through, only four had taken action against it.

“We’ve got easements from 72-73% of the landowners which the route crosses and so I do want to point out the broad support that this project enjoys. I don’t want to deny that there is opposition, but there is broad support,” said Koenecke.

Later in the meeting, Koenecke requested a time for Summit to come back later with a motion for a new scheduling order. The commission ultimately voted to deny the application.

“A permit cannot be legally issued if the evidence shows that the applicant cannot comply with the statute and that’s the challenge that we’re having here,” said Chairman Gary Hanson. “I believe that the applicant will be able to come back with, eventually, a clean application. And when they do, that is when it is proper to examine it and have our debate and lengthy hearing.”

Last week, the PUC denied a permit from Navigator Heartland Greenway to build 112 miles of carbon dioxide pipeline through South Dakota.

The Iowa Public Utilities Board wrapped up a three-week hearing on Summit's request last week. The board has not indicated when it will make a decision.

North Dakota regulators denied Summit's application to run the pipeline through their state last month.