Decision Looms by Sept. 6 on Navigator Pipeline Permit, Overruling South Dakota Counties

August 29, 2023

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by John Hult (South Dakota Searchlight/Argus Leader) The Public Utilities Commission will decide at a later date whether it will overrule county zoning officials on behalf of a carbon pipeline company.

Friday marked the second day of a two-day hearing in Pierre on the question of county authority, brought by Navigator CO2 Ventures, the company behind one of two proposed carbon pipelines that might pass through South Dakota.

Navigator wants commissioners to shoot down county-level restrictions on pipeline construction its representatives say are untenable. On the first day, a Navigator official named Monica Howard said the rules in Minnehaha and Moody counties represent uniquely targeted attempts to scuttle pipeline projects that backers see as critical to the future of the Midwest’s ethanol industry. Howard testified that the county ordinances amount to 11th-hour rule changes to the permitting process.

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On Friday, Commissioner Gary Hanson pushed Howard on the right of counties to manage their land use, and questioned her on how Navigator could characterize county zoning rules passed in 2023 as unexpected.

The pipelines have been controversial in South Dakota. Several bills aiming to regulate carbon pipelines appeared in the Legislature in 2023, and counties along the route have heard citizen complaints about safety and land rights for more than a year.

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Howard said counties dismissed her company’s suggestions based on “an established, vetted route” that complies with federal regulations and instead passed “arbitrary setbacks” for homes, schools, churches and cities.

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Most of the day was taken up by testimony from county zoning officials from Minnehaha and Moody counties. Each testified that pipeline companies were offered ample opportunities to give feedback. In Moody County, Planning Director Kendra Eng said, the company had the same amount of time as anyone else at its pipeline ordinance meetings.

The PUC did not make a decision on the question of preempting county ordinances on Friday.

The commission directed lawyers for both sides to prepare legal briefs on the issue, and to file them by Tuesday. The PUC has pledged to make its decision on Navigator’s pipeline permit application, and on the preemption question, by Sept. 6. READ MORE

South Dakota regulators deny permit for Navigator CO2 carbon pipeline (Iowa Capital Dispatch)

An evidentiary hearing for HP22-001 - In the Matter of the Application by SCS Carbon Transport LLC for a Permit to Construct A Carbon Dioxide Transmission Pipeline will be held Sept. 11-16, Sept. 18-21 and Sept. 25-28, 2023, at the Casey Tibbs South Dakota Rodeo Center, 210 Verendrye Dr., Fort Pierre, S.D. (South Dakota Public Utilities Commission)

Setting ourselves apart: Summit's dedication to communities, decarbonization, and the future of SD (Argus Leader)

Summit Carbon Solutions denied permit for carbon dioxide pipeline (Reuters)

SUMMIT CARBON SOLUTIONS ANNOUNCES IT WILL REFILE PERMIT APPLICATION IN RESPONSE TO COUNTY ORDINANCES AND PUC DECISION (Summit Carbon Solutions)

S.D. regulators reject another CO2 pipeline application -- The decision is the latest setback for Summit Carbon Solutions’ project that would stretch across five states. (Politico Pro Energywire)

Navigator says it's 'pausing' efforts to buy land easements 'in some parts of Iowa' (Des Moines Register)

Excerpt from Iowa Capital Dispatch: In a unanimous decision, the three-member South Dakota Public Utilities Commission on Wednesday rejected Navigator CO2’s application for a permit to construct the Heartland Greenway carbon capture pipeline in South Dakota.

The commission also unanimously refused the company’s request to preempt county pipeline setback ordinances. The ordinances mandate minimum distances between pipelines and dwellings, schools and other places.

In public comments during Wednesday’s meeting at the state Capitol, Commissioner Kristie Fiegen listed a number of reasons for denying the permit, including what she described as a failure by the company to adequately disclose carbon dioxide plume modeling, and a failure to provide timely notices to some of the landowners along the proposed route. The commission conducted a hearing on the permit application from July 25 to Aug. 8.

“The burden of proof is on the applicant,” Fiegen said Wednesday.

That burden, she added, includes ensuring the project will not negatively impact the social, environmental and economic well-being of the public. Fiegen made the motion, which was supported by the other two commissioners, to deny the permit. The commission’s staff will now prepare a formal written order.

Opposing sides react

Navigator, which is based in Omaha, issued a statement after the meeting.

“While we are disappointed with the recent decision to deny our permit application in South Dakota, our company remains committed to responsible infrastructure development,” the statement said. “We will evaluate the written decision of the Public Utilities Commission once issued and determine our course of action in South Dakota thereafter.”

South Dakota’s denial of a permit for Navigator f ollows North Dakota’s recent denial of a permit for another carbon pipeline project, proposed by Summit Carbon Solutions, which would also cross into South Dakota. Summit has already altered its North Dakota route and is seeking reconsideration of that decision. Summit’s South Dakota permit hearing is scheduled to begin Monday, and a weeks-long hearing on Summit’s proposed route in Iowa is in progress.

Navigator has not yet pursued eminent domain to obtain land access from unwilling landowners in South Dakota, while Summit has already filed dozens of eminent domain court cases in the state.

When asked by South Dakota Searchlight if Navigator will seek reconsideration of the commission’s decision, Navigator spokesperson Elizabeth Burns-Thompson replied by text message that the company “will determine that once we have the chance to review the final written order on Sept. 26.” READ MORE

Excerpt from Reuters: On Friday, the PUC's staff recommended in a filing that the commission reject the application because the project would violate county ordinances related to setbacks and other aspects of the pipeline route.

“We are hopeful that through collaborative engagement with these counties we can forge a path forward to benefit South Dakota and its citizens," said Summit CEO Lee Blank in the statement.

The company said that 73% of landowners along its proposed South Dakota route have signed voluntary agreements allowing Summit to access their land to build the pipeline.

The PUC on Sept. 7 denied an application from Navigator CO2 Ventures for its carbon dioxide pipeline, citing safety concerns and lack of support from landowners along the pipeline route.

Summit's proposed pipeline would span more than 2,000 miles (3,218 km) across Iowa, North Dakota, South Dakota, Nebraska and Minnesota. READ MORE

Excerpt from Polico Pro Energywire: For the second time in as many weeks, South Dakota regulators denied a developer’s application for a carbon dioxide pipeline in the state because of conflicts with local zoning regulations.

Monday’s decision on the Summit Carbon Solutions LLC application Monday came as the South Dakota Public Utilities Commission was to begin three weeks of evidentiary hearings on the project and less than a week after the PUC voted unanimously against issuing a permit to Navigator CO2 Ventures LLC for its CO2 pipeline.

At the core of both decisions were requests by the pipeline developers to preempt land use and zoning regulations adopted by four counties in response to the projects. That included setback distances that required pipelines be a specified distance from municipal boundaries and property lines of homes, schools, day care facilities and churches.

Monday’s PUC ruling is the latest setback for Summit, which saw its project denied by North Dakota regulators last month, and more broadly for CO2 pipelines proposed across the Farm Belt. READ MORE

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