Landowners Want PUC to Reject or Delay Carbon Dioxide Pipeline Application Due to Route Uncertainty

The Public Utilities Commission could throw a big spoke in Summit Carbon Solutions‘ wheel this week. At Wednesday’s meeting, the PUC will consider a motion from South Dakota landowners to dismiss the Iowa developers‘ application to build the Midwest Carbon Express carbon dioxide pipeline across East River.

The landowners’ motion, filed May 17, contends that SCS has failed to submit a complete application with the clear description of the final proposed pipeline route required by statute and rule. The motion notes that SCS, in its own motion to extend the PUC’s decision deadline to June 15, 2023, admits that it may not finalize its route map until October 13, 2022. Absent a final map, landowners cannot know if they are affected by the proposed project and entitled to intervene in the PUC application.

Absent SCS’s voluntary withdrawal or the PUC’s rejection of the current incomplete application, the landowners ask that the PUC follow the law and take at least twelve months after SCS submits its final route map to rule on the application. The landowners balk at SCS’s request to file its final map this coming October and then rush hearings and receive a decision within eight months; the landowners contend that instead, “for a matter of this complexity, size, and novelty,” the PUC should extend its decision deadline beyond twelve months, to include new notice requirements to every landowner affected by the final proposed route and a reopening of applications for intervenor status.

Summit Carbon Solutions says nuts to all that. In a response filed June 1, SCS says booting their application because of changes to six miles out of 469 total in South Dakota is “overly burdensome” and prevents them from accommodating landowner requests. SCS says statute allows them to make changes. They contend they have given every person in every county crossed by the pipeline sufficient notice.

SCS also argues that statute only allows the applicant to request an extension. SCS contends the landowners’ alternative request for a stay in the application until the map is finalized constitutes a request for an extension. Finally, SCS says that the law says the deadline for filing for intervenor status was April 8, 60 days after the date of its original application, and anyone else who wishes to intervene, even landowners newly affected by changes in the route, are out of luck.

On June 1, PUC staff attorneys Kristen N. Edwards and Amanda M. Reiss weighed in, mostly against the landowners. The staff attorneys say Summit Carbon Solutions has generally met the requirements for applying for its project and that the information filed so far provides “a specific route.” They say that applications are considered “continuing”, with room for changes. The PUC has leeway to determine whether changes prejudice any party or prevent “meaningful participation in the Commission’s process for individuals with a direct interest.” The PUC attorneys say the Legislature set the year-long review process to accommodate review of such changes.

The PUC attorneys do note that Summit Carbon Solutions’ application lacks certain items. SCS needs to submit its worst-case modeling and incident risk analysis to prove the CO2 pipeline “will not substantially impair the health, safety, or welfare of the inhabitants.” SCS also needs to submit its final environmental and cultural resource survey reports. However, the attorneys say this outstanding information “is not fatal to the Application at this time.”

The PUC attorneys side with Summit on “substantial compliance” with notice requirements. The attorneys say SCS provided the legally required notice to the “vast majority of landowners.” The attorneys cite multiple examples of route changes in past projects during which applicants demonstrated substantial compliance by hustling to notify newly affected landowners and thus avoided rejection of their applications.

The PUC attorneys agree with SCS’s position that statute limits requests for extensions to the applicant, not intervenors. The PUC attorneys say that route changes affecting new landowners are “hypothetical” and thus “not ripe for a Commission decision today.” However, they leave the door open for the PUC to consider the issue if SCS reroutes the pipeline come October and determine whether landowners have been given sufficient notice.

The PUC meets Wednesday, June 8, at 9:30 a.m. Central in Room 413 of the Capitol. The Summit Carbon Solutions docket is the final item on the agenda.