Fellow Democrats, liberals, and other sensible people regularly ask me what grounds for hope remain for good government in South Dakota. How about this:
A company run by big, rich Iowa Republicans and lobbied for in South Dakota by the now-former chairman of the South Dakota Republican Party walks into the Republican-controlled Public Utilities Commission and asks for a permit to build a carbon dioxide pipeline project that will drain water reserves and destroy landowner rights but help the Iowans collect big government subsidies and enrich the powerful ethanol lobby and Governor Kristi Noem, and the Public Utilities Commission tells them no.
The PUC had scheduled three weeks to hear Summit Carbon Solutions’ application for its plan to pipe CO2 across South Dakota from ethanol plants here and in Minnesota, Iowa, and Nebraska, up to an underground sequestration site in North Dakota. The PUC took maybe a couple hours to deal with just one issue: their own staff lawyers’ recommendation that the PUC reject the application due to Summit’s inability to comply with four counties’ zoning regulations, which the PUC declared last week in its rejection of another CO2 pipeline application from Navigator CO2 Ventures it would not overrule. All three commissioners agreed there was no way Summit could overcome that fatal roadblock in three weeks.
Commissioner Chris Nelson tried to throw Summit a lifeline by proposing an indefinite extension:
“Everybody’s put a tremendous amount of work into this, and it doesn’t seem to me to be fair to throw all of that out with a motion to deny. Summit is saying with time they can cure these deficiencies. I don’t know if that’s true or not, but I’m willing to give them the opportunity,” Nelson said [Bob Mercer, “Analysis: Summit Denial Might Not Last as a Win,” KELO-TV, 2023.09.11].
But Commissioner Gary Hanson and substitute Commissioner Josh Haeder weren’t having it, and Nelson succumbed:
“We need a clean process here,” Hanson countered. “The applicant had a responsibility to be ready when they first came. Obviously, they were not.”
Nelson’s substitute motion failed 2-1. He then announced he would back denial. “As I look at the two sections of statute that we’ve been working on this morning, we could go through three weeks and we would have, we would have a lot of this issue resolved,” Nelson said.
But at the end of those three weeks, Nelson continued, he still didn’t see a way to get past section 1 of 49-41B-22 — the law requiring the proposed facility comply with all applicable laws and rules — or the last sentence of 49-41B-28, the law that says without a pre-emption finding by the commission, no route shall be designated which violates local land-use zoning, or building rules, or regulations, or ordinances.
“And so I’m going to support the motion, and we’ll start clean,” Nelson said [Mercer, 2023.09.11].
The radical right-wing South Dakota Freedom Caucus certainly sees hope in the PUC’s swift decision. The Freedom Caucus is claiming credit for the Public Utilities Commission’s “affirming the constitutional rights and property of the people of South Dakota“:
The South Dakota Freedom Caucus has been at the forefront of this battle, actively opposing the use of eminent domain by private companies. On Friday, September 8th, the Caucus sent out nearly 10,000 robocalls to 18 legislative districts. The robocalls encouraged constituents to call their Representative or Senator to demand a special legislative session aimed at addressing the use of eminent domain by private entities and other related private property rights issues.
Vice-Chair Representative Tony Randolph added, “This decision reaffirms what we’ve been saying all along: private companies should not have the power to seize South Dakotan land for their own gain. We will continue to stand with our constituents and fight for their rights.” [South Dakota Freedom Caucus, press release, 2023.09.11].
The PUC reaffirmed no such thing. The PUC did not say that Summit cannot continue eminent domain proceedings it has launched against over 150 South Dakota landowners. The PUC did not overrule the law and case precedent that says (wrongly) that private companies may seize land through eminent domain. And the Freedom Caucus’s robocalls have not secured a Special Session. Yesterday’s decision certainly doesn’t affirm the Freedom Caucus’s influence. The only glancing way in which it affirms property rights is in its affirmation that counties may still enact zoning ordinances that reflect the interests of local constituents, and even on that point, the preeningly conservative Freedom Caucus has to acknowledge that it is fighting for government regulation that can block capitalist enterprise.
Dakota Rural Action, which is more interested in people than politics, more accurately thanks the PUC for standing up for local control:
“We are so grateful to the PUC commissioners for standing up for their constituents! They made the right decision for the future of South Dakota. We are also thankful to them for upholding our county ordinances!” said Joy Hohn, and impacted landowner and DRA member from Minnehaha County.
This decision by the Public Utilities Commission is another staunch victory for the importance and power of local government. It is also a clear repudiation of Summit Carbon Solution’s attempt to bully their way through the permitting process by threatening counties with lawsuits if they took up ordinances and asking the PUC to preempt those ordinances without submitting any evidence that they had attempted to comply with them. Notably, the point was raised through Commission questions that Summit has initiated condemnation lawsuits against one hundred and sixty landowners, as well as four counties.
“This is a great day for people over big money. Thankfully our commissioners and staff followed the law and denied Summit’s permit. It is a great day for the people of South Dakota!” said Ed Fischbach, an impacted landowner and DRA board member from Spink County [Dakota Rural Action, press release, received by DFP 2023.09.11].
As Bob Mercer points out, the PUC ruled yesterday not on the merits of the carbon dioxide pipeline but on this one local-control roadblock which may be overcome with a new application, a new map, and big economics:
Don’t be surprised when Summit applies again — and don’t be surprised if the next version of the pipeline is more ambitious, with a new leg to serve the Gevo aircraft-fuels plant that is planned at Lake Preston.
Governor Kristi Noem has touted the Gevo facility as the “largest economic investment in South Dakota history” and her lieutenant governor, Larry Rhoden, attended the September 15, 2022, groundbreaking. Likewise, Summit has noted the Gevo project on its website.
Nor would it be a surprise if the commission eventually approves Summit’s next application. Because, in the words spoken Monday by one of Summit’s attorneys, Brett Koenecke, carbon capture is “the future of agriculture” [Mercer, 2023.09.11].
Summit Carbon Solutions refiled in North Dakota after North Dakota’s Public Service Commission rejected their initial application; Summit press-released immediately after its PUC rejection yesterday that it will do the same in South Dakota.
If we can get South Dakota Republicans to say no once to a big corporate Republican project, we can get them to say no again. But those big corporate Republicans will keep asking, so folks who like land rights and local control will have to keep fighting.
