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Landowners Claim Unknown Route of Carbon Dioxide Pipeline Justifies Allowing More Applications to Intervene in PUC Permit Process

Interested parties are still applying to intervene in the Public Utilities Commission’s consideration of Iowa-based Summit Carbon Solutions’ application to lay pipes to transport carbon dioxide from ethanol plants in five states up to North Dakota. Since the original April 8 deadline for applying to intervene, 87 parties have filed new applications to intervene, including 58 last week and three this week Monday. The PUC staff said on April 22 they were done considering new applications and would not approve any submitted after April 14, but on April 28, Nebraska lawyer Brian Jorde, who is leading the South Dakota Easement Team to help landowners resist unfair easement agreements and Summit Carbon Solutions’ likely resort to eminent domain, and his local colleague and South Dakota legislator Ryan Cwach of Yankton asked the PUC to give intervenors at least two months more after April 8 to apply, since SCS still hasn’t provided complete and final maps of its proposed pipeline route:

6. On April 8, 2022, Hazardous Pipeline Applicant filed a letter disclosing material changes in its proposed route and included a vague overview map with the changes noted but to insufficient detail to determine precisely what the new routes were or who was impacted despite this information being readily available and at the fingertips of Hazardous Pipeline Applicant. No direct notice of such changes has been provided to any affected landowners and unless you happen to be checking the PUC docket in this matter daily you still would have no idea of these material changes.

7. Once the Application contents changed and multiple new routes emerged on April 8, 2022, it is reasonable that the deadline for Party Status should correspondingly be moved out sixty (60) days, analogous to S.D. Admin. R. 20:10:22:40 provision for sixty (60) days after fling of the Application. Since the Application has now materially changed and Hazardous Pipeline Applicant stated in its April 8, 2022, letter that “[O]ur SD PUC application and exhibits will be updated to reflect these changes in the near future,” it logically follows additional time is reasonable for affected South Dakota landowners to have time to consider their legal rights in seeking Party Status and protecting their interests. Alternatively, the Party Status deadline should be moved to sixty (60) days after the date whenever Hazardous Pipeline Applicant gets around to updating its Application so folks can finally have an idea on who actually is affected, thus triggering the Party Status filing clock.

…9. …[G]iven multiple vague new routes have recently come to light and the Application will be amended at some unknown time in the future, it is not reasonable that Party Status Applications be cut off as of April 8 or 14 or until and unless Hazardous Pipeline Applicant finalizes its Application so that all participants in this docket currently and all South Dakotans directly affected based upon the new Application be afforded an opportunity to review, research, understand, and decide if Party Status is the appropriate route for them [Brian Jorde and Ryan Cwach, “Landowners’ Motion for Approval of Party Status Applications Field After April 8, 2022, and Motion for Extension of Intervention Deadline or in the Alternative Motion for Stay of All Proceedings,” Public Utilities Commission Docket HP 22-001, 2022.04.28].

Bob Mercer reports that at their April 28 meeting, the PUC directed staff to consider applications submitted up to that day, which would include all but the 16 most most recent applications:

The commission approved more than 300 interveners on April 14. Another 30 received approval Thursday. The commission’s staff was also directed to review the remainder who applied after April 22 through 8 a.m. Thursday.

The commission didn’t address Jorde’s motion, but chairman [Chris] Nelson said he doesn’t want to allow any more interveners after the group currently being reviewed.

“This cannot go on indefinitely. It simply can’t, unless there is very, very good reason,” Nelson said [Bob Mercer, “SDPUC Lets More Intervene in CO2 Pipeline Case,” KELO-TV, 2022.04.28].

I don’t know, Commissioner Nelson: not having a complete and final map of every parcel of land that might get eminent domained and dug up for the carbon dioxide pipeline sounds like a very, very good reason to allow landowners to continue to apply to intervene.

The PUC meets again next week Tuesday, May 10; consideration of remaining intervenor applications is the last item on their agenda.

2 Comments

  1. Jake 2022-05-05

    Uh-oh!! THE PEOPLE are starting to awaken to the games our state government has played for years, eh?

  2. Donald Pay 2022-05-05

    Chris Nelson should know better. This ain’t Chris Nelson’s PUC. It’s the South Dakota PUC, Nelson is supposed to be a public servant, but he seems to be serving the interests of the company.

    This is a problem with the way SD government operates in general. Rather than requiring the applicant to do a proper job in planning and disclosing a project, as would be required under a NEPA-type process, the state accepts whatever company-issued initial reports they provide, and if the project location changes so that it now impinges on your property, Well, too bad for you, in’t it?

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