Fellow Democrats, liberals, and other sensible people regularly ask me what grounds for hope remain for good government in South Dakota. How about this:
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.
“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 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.
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].
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.
South Dakota regulators on Wednesday denied a construction permit for a carbon dioxide pipeline project, one month after a North Dakota panel did the same to a similar project by another company.
Navigator CO2 Ventures wants to build a 1,300-mile (2,092 kilometers) pipeline network across Illinois, Iowa, Minnesota, Nebraska and South Dakota, to carry planet-warming carbon dioxide emissions from more than 20 industrial plants to be buried over a mile underground in Illinois.
The South Dakota Public Utilities Commission voted unanimously to deny Navigator’s application for its Heartland Greenway pipeline. Chair Kristie Fiegen cited myriad reasons in her motion to deny, including the company’s lack of promptness and several objections to commission staff questions as well as struggles to notify landowners of routes and meetings. She detailed concerns related to safety, community growth, landowners and emergency responders, among other issues.
The proposed South Dakota route encompassed 112 miles (180 kilometers) and would serve three ethanol plants. The panel’s decision came after evidentiary hearing sessions in July and August.
Navigator expressed disappointment that the permit was denied, and was weighing its options going forward.
“Our commitment to environmental stewardship and safety remains unwavering, and we will continue to pursue our permitting processes in the other regions we operate in,” the company said in a statement.
The decision comes just days before the South Dakota panel is set to begin an evidentiary hearing Monday for a separate CO2 pipeline project, proposed by Summit Carbon Solutions, with a final decision expected by Nov. 15.
Brian Jorde, an attorney for South Dakota landowners opposed to the Navigator and Summit projects, expressed hope that Navigator might now drop the South Dakota leg of the project, given that most of the plants it would serve are in Iowa and other states.
Similar projects are proposed around the country as industries try to reduce their carbon footprints. Supporters say carbon capture will combat climate change. Governments and companies are making big investments in it. But opponents say the technology isn’t proven at scale and could require huge investments at the expense of alternative energy sources such as solar and wind power.
Landowners across the Midwest have opposed such pipeline projects, fearing their land will be taken and that the pipelines could break, spewing hazardous carbon dioxide into the air.
Other states continue to weigh Summit’s project, which would encompass a 2,000-mile network from 30-some ethanol plants throughout Iowa, Minnesota, Nebraska, North Dakota and South Dakota to an underground storage site in North Dakota.
The Iowa Utilities Board began its evidentiary hearing for Summit last month. It’s expected to last several weeks.
North Dakota’s Public Service Commission last month denied Summit a siting permit. The company subsequently asked the panel to reconsider. The regulators have a work session set for Friday to discuss the request. A decision will come after the meeting.
Summit this week withdrew its applications to Oliver County for two permits related to construction of injection wells for its underground CO2 storage site in central North Dakota.
The company’s move came after the county’s planning and zoning board voted last week to forward a denial recommendation to the county commission. The board had cited a lack of information from Summit, safety concerns and no financial or economic benefit to the county or residents, Oliver County Auditor Jaden Schmidt said.
Summit spokesperson Sabrina Ahmed Zenor said the company would work to address Oliver County’s questions and concerns and that it was confident of securing the necessary permits from the county.
The South Dakota Public Utilities Commission has unanimously rejected Navigator C-O-2 Venture’s application to build a carbon capture pipeline in South Dakota.
Navigator is one of three companies with plans to build carbon pipelines in the Midwest, including sections in Floyd, Butler, Bremer, Fayette, Buchanan, and Franklin counties. South Dakota regulators held public hearings on the company’s route through their state in late July and early August, then unanimously voted this week to reject Navigator’s application for a construction permit. The head of South Dakota’s Public Utilities Commission cited concerns about Navigator’s notices to property owners along the proposed pipeline route.
Navigator had objected to county ordinances restricting how close the pipeline could be built near homes, schools and other structures, but South Dakota utility regulators have also refused to override those county regulations. Navigator says they will evaluate the written decision from South Dakota regulators before deciding what to do next.
In early August, regulators in North Dakota rejected Summit Carbon Solution’s construction permit. The company has since altered its route in North Dakota in response to concerns about its proximity to Bismarck, in hopes that North Dakota’s Public Service Commission will reconsider the application. The permit hearing for Summit’s route in South Dakota is scheduled to begin Monday.
Meanwhile, the Iowa Utilities Board (IUB) hearing about the proposed Summit Carbon Solutions pipeline continued this week in Fort Dodge with testimony from witnesses who support the project. Landowners who oppose Summit’s pipeline testified over the first past two weeks of the proceedings.
The IUB has scheduled hearings to continue next week on Tuesday (09.12), Wednesday (09.13) and Thursday (09.14)
When denying Navigator CO2 Ventures a permit this week for the part of its multistate pipeline proposed for South Dakota, that state’s regulators declined to overrule county ordinances there that restrict carbon dioxide pipelines.
Another pipeline developer, Summit Carbon Solutions, also has asked that state’s Public Utilities Commission to give it a permit despite the local restrictions — including in Minnehaha County, S.D., where the restrictions were upheld.
A final evidentiary hearing for Summit’s permit in South Dakota is poised to start Monday. Summit’s pipeline system would transport captured carbon dioxide from ethanol plants in five states — including Iowa — to North Dakota for underground sequestration.
James Powell, the company’s chief operating officer, testified this week during its evidentiary hearing in Iowa that the pipeline would not be built here without permits in the Dakotas.
Opponents sit Aug. 22 in the gallery of the Iowa Utilities Board meeting on the proposed Summit Carbon Solutions pipeline at the Cardiff Events Center in Fort Dodge. Public utility regulators in Iowa are holding hearings on the company’s proposal for a carbon dioxide pipeline for transporting emissions of the climate-warming greenhouse gas for storage underground. (Lily Smith/Des Moines Register via AP)
“Given they declined to strike down the Minnehaha ordinance, I see no reason why they would change that decision,” said Brian Jorde, an attorney who represents more than 100 landowners affected by the pipeline projects in multiple states. “It would be wise for Summit to either pull its application or state they are suspending their request for application — which they can do at any time — until they come up with a route that can comply with all applicable laws and ordinances.”
A Summit spokesperson declined to comment on the potential effects of the Navigator decision on the Summit proposal.
“Summit Carbon Solutions looks forward to our hearing with the South Dakota PUC starting on September 11,” said Sabrina Zenor, the company’s director of community relations.
County powers vary by state
Some Iowa counties enacted restrictions that would force carbon dioxide pipelines to be placed certain distances from cities, livestock facilities, electric transmission lines, homes and other sites. But a federal judge decided in July that state law does not grant counties the authority over the siting of the pipelines, which is the jurisdiction of the Iowa Utilities Board.
That ruling was the result of a Summit lawsuit against Shelby County.
“Common sense suggests these restrictions would eliminate all or almost all land in Shelby County on which an (Iowa Utilities Board) approved pipeline could be built,” Chief Judge Stephanie Rose wrote. “This creates a serious possibility the IUB would approve the construction of the pipeline but Summit would be unable to build because it could not comply with the requirements of the ordinance.”
The situation is different in South Dakota. Counties are allowed to adopt their own restrictions, but state regulators can overrule them if they are “unreasonably restrictive.”
In August, Summit asked commissioners to use their authority to “preempt” ordinances in four South Dakota counties: Brown, McPherson, Minnehaha and Spink.
All of them lie in the path of the primary pipe that would take carbon dioxide from Iowa to North Dakota. The company’s project would span about 475 miles in South Dakota, compared with more than 680 in Iowa.
“These are no ordinary county ordinances,” wrote Brett Koenecke, a Summit attorney. “Each one was enacted as a reaction and to expressly target (and likely stop) carbon dioxide pipelines.”
The ordinances are typically borne of safety concerns about the pipelines. Under certain circumstances, a major breach can form a plume of carbon dioxide gas that can travel long distances and suffocate people and animals. Summit says its pipeline would be one of the safest ever built.
Ordinances might block Summit
Navigator was unsuccessful in arguing to override ordinances in two counties, in part, because the company acknowledged it could build its pipeline in at least one of the counties despite the restrictions, the South Dakota Searchlight reported.
Summit argues that the restrictions are so severe its project would be blocked, including in Minnehaha.
“These counties have established setback requirements and permitting schemes that make the counties, not this commission, the primary siting authority for the State of South Dakota,” Koenecke wrote. “And they’ve done that by effectively banning hazardous liquid pipelines. That is unreasonably restrictive. And it goes against the policy set by the legislature.”
Erik Schovanec, Summit’s director of pipeline and facilities, testified in Iowa this week that the company has sought to assuage residents’ concerns when possible by adjusting its route. He noted that landowner feedback has resulted in more than 200 adjustments.
Navigator has not publicly indicated how it might proceed in South Dakota. Its roughly 1,300-mile system would transport carbon dioxide from ethanol and fertilizer plants in five states to Illinois.
The route in South Dakota is not physically necessary for the routes in other states, including Iowa. A Navigator spokesperson declined to say whether the project would proceed in the other states without South Dakota.
Status in Iowa
Summit is in the third week of its final evidentiary hearing with the Iowa Utilities Board.
The company began presenting its witnesses this week for cross examination. An initial schedule showed that its 15 witnesses would be called this week, but there have been delays. Just one of the four planned witnesses for Tuesday testified that day. On Thursday, the hearing stopped early because another witness wasn’t available. The company’s witness testimony is expected to continue into next week.
Much of the testimony Wednesday and Thursday focused on financial aspects of the project, and some of the most important details — the contracts between Summit and ethanol plants — were discussed in private because they are subject to a protective order.
The first two weeks of the hearing featured some of the landowners who are subject to eminent domain requests because they declined to sign easement agreements. Those easements allow Summit to build its pipeline on property it doesn’t own.
Zenor recently noted that the number of land parcels for which it seeks eminent domain has declined to about 900. That is down from about 950 at the start of the hearing. Zenor said that decline is the result of landowners signing voluntary easements.
Most of the eminent domain requests are scheduled for consideration later in the hearing, which has the potential to extend for weeks or months.
An evidentiary hearing for Navigator has not been set. Iowa regulators plan to hold a scheduling conference Oct. 9 to help determine a start date.
SIOUX FALLS, S.D. (Dakota News Now) -After the recent decisions by the South Dakota Public Utilities Commission to deny both the CO2 pipeline applications, some may be asking what’s next for CO2 capture.
Although both Navigator and Summit Carbon Solutions may re-apply for a CO2 pipeline in the state, the process could take time. Our I-team is looking at other alternatives that could remove CO2 to benefit ethanol plants without the use of a CO2 pipeline.
The recent PUC meetings reviewing CO2 pipelines captured the attention of landowners, those in the ethanol industry, and scientist Jeff Bonar, CEO of Cap CO2 Solutions.
“You know, I think the pipelines are starting to be exposed as other than a good financial engineering job,” said Bonar.
He developed a new way to allow ethanol plants to make money from the CO2 produced and help the environment. Bonar believes the answer is Green Methanol, used in the shipping industry.
“There are 40 ports around the world that are going to be putting green methanol refueling facilities. Disney Cruises has announced their next cruise ship will be a green methanol-fueled ship.
The process of converting the CO2 to green methanol can be done on-site at the plant, using electricity coming from an environmentally friendly source. The CO2 is electrically converted, cooled, and exits as non-compressed methanol, less flammable than ethanol.
“You have to supply electricity, more than the ethanol plant is using now. You have to supply the CO2, and you have to supply the railroad car to fill up as you’re making it,” added Bonar.
The green methanol could be delivered via rail to buyers on the Gulf Coast.
“You have an instant, very big market,” said Bonar. “So why are you throwing away the CO2 and burying it, leaving aside all the other problems of the pipelines? Why would you do that when you can add new revenue from the green methanol?”
Bonar believes the government’s 45Q financial incentives are the same as the CO2 pipelines. He’s also proud that the company is locally owned.
“No investors out of the country. And at this point, there’s no investors outside of the Midwest,” said Bonar.
Bonar is in conversations with local ethanol plants interested in signing up upon proving the process with his first client. Construction is underway for that first client in Illinois at Atkins Energy, an ethanol refinery.
Another CO2 capture option is already underway in Europe. The Biden administration injected $1.2 billion to launch two U.S. plants to remove CO2 from the air.
“We’re excited to build a U.S. direct air capture industry,” says Daniel Yawitz with the Department of Energy.
The first two plants in Louisiana and Texas, are part of a network of 21 Direct Air Capture plants to be built, many storing the captured CO2 on-site underground.
“It’s part of the regional direct air capture hubs program,” says Yawitz.
Without utilizing a CO2 pipeline, the first two plants can make a big difference in meeting environmental goals.
“Once they reach capacity at one million tons per year each, it would be the equivalent of taking one-half million cars off the road each year,” said Yawitz.
There are currently 18 Direct Air capture projects globally, but these would be the first two commercial-scale ones in the U.S.
We're fighting for our homes and our land, and for the safety of South Dakota communities just like yours. But we can't do this alone, we need your help, so if you can, pitch in and let's make some hay.
We're fighting for our homes and our land, and for the safety of South Dakota communities just like yours. But we can't do this alone, we need your help, by being informed and taking action when it matters most.
