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South Dakota suggests delaying Summit Carbon pipeline hearings to September or later

Iowa-based Summit Carbon Solutions wants to start construction in 2023 to benefit the ethanol industry, but some farmers have concerns about damage to farmland and property values.

A map of the Summit Carbon Solutions pipeline project
A map of the Summit Carbon Solutions pipeline project as it travels into Iowa, Nebraska, South Dakota, North Dakota and Minnesota.
Troy Becker / The Forum
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PIERRE, S.D. — South Dakota regulators say they may need to push back hearings on what could be the world’s largest carbon capture and storage project until September 2023 and maybe even 2024.

The South Dakota Public Utilities Commission on Tuesday, Dec. 20, directed its staff to look at available dates in September for what would be at least 10 days of hearings on the controversial Summit Carbon Solutions pipeline.

PUC staff had suggested late April and May for the hearings, which was supported by Summit.

But because of it being in the heart of spring planting season for farmers, a conflict for an attorney representing many landowners, and the complexities of the project, commissioners told staff to come back to the Jan. 5, 2023, meeting with a new proposal.

Commissioner Gary Hanson said “if that has to be 2024, then so be it.”

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Iowa-based Summit has said it would like to begin construction in 2023 and have the $4.5 billion project operational in 2024. Summit’s Midwest Carbon Express pipeline intends to capture greenhouse gasses from ethanol plants in five states and pipe it to North Dakota for underground storage. The main trunk of the pipeline would run through South Dakota.

A map of the Summit Carbon Solutions proposed pipeline route through South Dakota.
Summit Carbon Solutions proposed pipeline route through South Dakota.
Summit Carbon Solutions

Commissioner Chairman Chris Nelson did not rule out a hearing before September on the pipeline.

“I can probably go a lot of those different directions but we need to get it scheduled,” Nelson said.

While Summit has said the project will benefit the ethanol industry and corn growers, many farmers and other landowners have been wary of the pipeline, citing concerns about safety, damage to farmland and lower property values. They argue that the potential use of eminent domain to secure right-of-way for the pipeline is wrong.

Attorney Brian Jorde of Nebraska-based Domina Law represents many of the farmers and landowners that are resisting providing an easement to Summit for the pipeline. He cited another case that is scheduled for trial in early May as a conflict with the spring time frame.

Nelson said the PUC has always tried to schedule around such conflicts of attorneys involved in PUC dockets.

Summit attorney Brett Koenecke argued there will likely be a settlement in Jorde's other case before it gets to trial, as happens with most cases.

“The notion that we would reschedule for months for his schedule when he's obviously taken on too much work to handle … is very difficult for me to swallow here this morning,” Koenecke said.

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Jorde also cited about 70 different lawsuits in South Dakota involving landowners and Summit Carbons Solutions that will be in the courts in 2023 and that Summit has only about half of the voluntary easements that it needs in South Dakota as other reasons to delay.

The Iowa Utilities Board also has yet to schedule a hearing on Summit’s permit application. At a recent meeting Summit suggested 15 days of hearings could start on March 20, 2023, but others, including Jorde and the Iowa Farm Bureau, said at a Dec. 13 meeting that such a time frame would be unworkable.

Summit also still needs permits in North Dakota, Minnesota and Nebraska.

A map of the Summit Carbon Solutions pipeline project
A map of the Summit Carbon Solutions pipeline project as it travels into Iowa, Nebraska, South Dakota, North Dakota and Minnesota.
Troy Becker / The Forum

Two more counties sued

Summit Carbon Solutions has sued two more South Dakota counties that it contends has overstepped their authority to regulate carbon capture pipelines.

Summit has filed suits against the board of commissioners in McPherson County and in Spink County.

Spink County in July passed a moratorium on issuing local permits for hazardous waste pipelines. McPherson passed its moratorium back in January, citing concerns from residents about the safety of the project in a letter to the South Dakota Public Utilities Commission, which must approve a permit at the state level.

Summit's lawsuits, filed Dec. 12, say courts have "repeatedly held that federal law preempts state and local governments’ efforts to impose their own standards on federally regulated pipelines."

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Summit had previously sued Brown and Edmunds counties in South Dakota . It also has sued two counties in Iowa over restrictive ordinances.

Ronald Alverson, a farmer in Lake County, South Dakota, is joining Summit Carbon Solutions in the lawsuits against the South Dakota county commissions.

According to court documents, Alverson is a founder of Dakota Ethanol in Lake County, which is one of 32 ethanol plants that would connect to the pipeline. He also is an investor in several other ethanol plants that stand to gain from selling ethanol in low-carbon fuel markets if the pipeline is built.

Dakota Ethanol expects to earn at least $15 million per year in low carbon premiums, Summit says in its lawsuits.

042720.AG.Ethanol Roundup04.jpg
Glacial Lakes Ethanol LLC at Watertown, South Dakota, is one of the ethanol plants that would connect to the proposed Summit Carbon Solutions pipeline.
Mikkel Pates / Agweek

Summit says the actions by the counties are preempted by the federal Pipeline Safety Act and are "invalid, unenforceable, and null and void."

Summit says South Dakota's Hand County also passed a moratorium in April only to withdraw it in July, citing federal and state authority, the lawsuits contend.

Carbon capture coverage
Summit says proceedings could start in March; other parties ask Iowa Utilities Board for more time.

Other pipeline news

In other carbon pipeline news:

  • The North Dakota Public Service Commission has appointed Timothy Dawson as a substitute for Commissioner Julie Fedorchak. Fedorchak and her husband own land in Oliver County and have agreed to store liquid carbon dioxide on their property. Dawson is the director of the North Dakota Office of Administrative Hearings.
  • Minnesota Gov. Tim Walz has reappointed Katie Sieben as commissioner and chair of the Public Utilities Commission, which will rule on carbon pipeline permit applications in that state.
  • Summit Carbon Solutions has joined the Minnesota Bio-Fuels Association as a vendor member. “Summit Carbon Solutions is helping create new economic and environmental opportunities for the ethanol industry. We are glad to welcome them as our newest member. MN Bio-Fuels is stronger because of the many agriculture and industry partners that are working with us on our common goals of lowering emissions and strengthening rural communities,” Brian Werner, executive director at MN Bio-Fuels, said in a news release.
Reach Jeff Beach at jbeach@agweek.com or call 701-451-5651 (work) or 859-420-1177.
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