Public utility regulators in Iowa will begin a hearing Tuesday on a proposed carbon dioxide pipeline for transporting emissions of the climate-warming greenhouse gas for storage underground that has been met by resistant landowners who fear the taking of their land and dangers of a pipeline rupture. . . .
Followed by an explainer and recap of the controversy:
Here is what to know about Summit's project as more proceedings begin.
What is carbon capture?
Carbon capture entails the gathering and removal of planet-warming CO2 emissions from industrial plants to be pumped deep underground for permanent storage.
Supporters view the technology as a combatant of climate change. But opponents say carbon capture and storage isn't proven at scale and could require huge investments at the expense of cheaper alternatives such as solar and wind power, all at a time when there is an urgent need to phase out all fossil fuels.
Carbon capture also is viewed by opponents as a way for fossil fuel companies to claim they are addressing climate change without actually having to significantly change their ways.
“I think there's a recognition even in the fossil fuel industry that, whether you like it or not and agree or not, (climate change) is a reality you're going to deal with from a regulatory standpoint, and you'd better get out in front of it or you're going to get left behind," said Derrick Braaten, a Bismarck-based attorney involved in issues related to Summit’s project.
New federal tax incentives have made carbon capture a lucrative enterprise. The technology has the support of the Biden administration, with billions of dollars approved by Congress for various carbon capture efforts.
“Carbon capture and storage is going to be more and more important every day as we go forward in America,” Hamm has said.
Action in five states
The Iowa Utilities Board begins its public evidentiary hearing Tuesday in Fort Dodge, a hearing “anticipated to last several weeks,” according to a news release. The board's final decision on Summit's permit request will come sometime after the hearing.
Minnesota's Public Utilities Commission has a hearing set for Aug. 31 in which the panel “will make decisions about the scope of environmental review” regarding Summit's permit application for its pipeline in two counties, said Charley Bruce, an energy facilities planner with the commission.
A Summit attorney recently indicated to Minnesota that North Dakota regulators' decision to deny a permit will not affect the company's plans, including for other proposed routes in southern Minnesota.
The South Dakota Public Utilities Commission is set to begin its evidentiary hearing for the project on Sept. 11 and expects to make a final decision by Nov. 15.
Nebraska has no state-level regulatory authority for CO2 pipelines. Summit is working with counties individually in Nebraska.
Counties don't approve or deny a route, but can institute ordinances' setbacks for land-use purposes that can dictate where a pipeline may go, and can enter into road haul agreements and road crossing permits, said Omaha-based attorney Brian Jorde. He represents more than 1,000 landowners opposed to CO2 pipeline projects in four states.
Summit hasn't hit “an insurmountable legal obstacle” in North Dakota regulators' denial “because they literally said ‘try again,’” Braaten said.
"If they get over themselves I think that they could do it and get approved, but I think they certainly shot themselves in the foot and they're making it much harder in those other states because they're going to come in with those commissioners there looking at them with a certain level of skepticism because you literally just got denied a permit in North Dakota," he said.
What's sparking opposition?
Landowners have raised concerns about the pipeline breaking, as well as eminent domain, or the taking of private land for the project, with compensation.
Eminent domain laws vary state by state, said Jorde, who represents hundreds of people Summit has sued in South Dakota to take their land for its pipeline.
“When you have the power of eminent domain like a hammer over a landowner's head, you can intimidate them into doing things they wouldn't otherwise do, which is sign easements, which Summit then turns around and says, ‘Look at all these “voluntary” easements we have. Look at all the “support” we have,' which is completely false," Jorde said. . . .
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FORT PIERRE, S.D. – A carbon dioxide sequestration pipeline that may ferry climate-heating gas from the stacks of ethanol plants to burial points deep in Illinois rock bed may soon need Minnesota's approval. But first, the project must clear South Dakota regulators.
And the farmers attending last month's hearing in a rodeo museum were firmly opposed.
"We're all pro-ethanol," said Kay Burkhart, who farms outside Valley Springs, S.D., which hugs the Minnesota state line. "But they're going to force us to sign an easement that we don't want to sign."
A billion-dollar-plus bet is afoot to dramatically lower corn ethanol's carbon footprint by spider-webbing pipelines across the Upper Midwest. Omaha-based Navigator C02 and Iowa's Summit Carbon Solutions aim to sell more biofuel in greenhouse-conscious California and Canada, as well as qualify for lucrative federal tax credits.
That could translate into a premium price for many Midwest farmers' corn.
But to do so, they need to run pipe beneath private land, rivers and marshes.
For Burkhart and others, their opposition is largely over eminent domain. Under that legal authority, her land can be forcibly traversed for a court-approved sum of money — including by CO2 pipeline companies in South Dakota.
That's not the case in Minnesota, where farmer sentiment is more mixed on the subject.
Under Minnesota statute, only natural gas and oil pipelines possess that authority. So far, that's meant a world of difference in the attitudes toward the CO2 pipeline here compared to in Iowa and South Dakota. In those neighboring states, the proposal has stirred anger, with flurries of lawsuits, tense stand-offs between surveyors and landowners, and calls for legislative special sessions.
"You don't have eminent domain, but you have running water and electricity in Minnesota?" asked Burkhart, who wishes South Dakota's eminent domain law was more narrowly tailored. "How do you have civilization?"
The same farmers who could benefit financially often stand opposed to the idea of forced access to their land. Eminent domain is typically reserved for public projects or utilities and these CO2 pipelines are a private endeavor.
At least in Minnesota, the companies are obligated to pay farmers up-front for entirely voluntary easements.
"Every one of the other states we intend to operate in does provide a pathway to condemnation," said Elizabeth Burns-Thompson, the vice president of government and public affairs with Navigator CO2. "Minnesota does not."
From the exterior, the absence of this lever for the pipelines has seemingly made it easier, not harder for business because in principle, the approach feels less hostile.
Navigator says they've gathered "a bulk" of the easements in Minnesota, though they've yet to formally apply for a route permit from the state's Public Utilities Commission.
Similarly, Summit Carbon, which has applied for a permit along one of the three branches it intends to build in Minnesota, says it's netted nearly two-thirds of the private crossings in Minnesota — including more than 90% in Jackson and Otter Tail counties.
The companies declined to discuss whether they've paid Minnesotans more for easements. But Brian Jorde, an Omaha attorney representing landowners in South Dakota and Iowa, says Minnesota's high legal barrier, at least in theory, means landowners are better protected.
"Where they have eminent domain and where they have survey laws that say we can do what we want, they're just more like the Wild West," Jorde said. "When the law protects people, corporations have to treat people better."
By comparison, Navigator revealed before South Dakota's public utilities commission that they'd secured only 30% of the necessary easements in that state.
But some Minnesotans are also passionately opposed to the CO2 pipelines.
At the first round of public listening sessions in western Minnesota earlier this year, and in public filings, opponents accused Summit of minimizing the safety risks of a pipeline rupture. One woman suggested the company bamboozled her infirm mother into signing a contract — a charge Summit's CEO Jimmy Powell denies.
Peg Furshong, director of programs at Montevideo-based nonprofit Clean Up the River Environment (CURE),fears the company may use Minnesota as a prop for showing investors "some movement in the project."
Earlier this month at FarmFest, Minnesota's annual ag-industry gathering, workers at Summit Carbon booth mostly answered farmers' polite questions.
"We're working directly with the landowners," said Scott O'Konek, a project manager. While Summit has sued dozens and dozens of landowners in South Dakota, they've needed to work "100% for voluntary easements" in Minnesota.
"Each landowner is met with and negotiated with," O'Konek said. "A majority of the easements are [already] acquired."
Standing not far away, Thom Petersen, Minnesota Department of Agriculture commissioner, acknowledged "farmers are really split."
While Minnesota has "a really strong eminent domain law" for projects like the Enbridge Line 3 oil pipeline, which crossed northern Minnesota, Petersen said CO2 sequestration pipelines don't qualify for the same legal authority. "[For] a private utility, it's going to make it very difficult to take the land. So they need to negotiate fairly."
Both CO2 pipelines are still a long way from breaking ground. Minnesota's PUC will vote on a scope of survey on Aug. 31. Similarly, in Nebraska, the companies so far are seeking voluntary easements.
Summit's hearings in Iowa and South Dakota begin within the month. . . .
Summit Carbon Solutions would build its proposed carbon dioxide pipeline farther away from North Dakota’s capital city, according to a new route that is meant to assuage commissioners who denied the company a permit this month.
The state is an important part of Summit’s project, which would transport captured carbon dioxide from more than 30 ethanol plants in five states to North Dakota for underground sequestration. It includes more than 2,000 miles of pipe. The North Dakota permit denial prompted opponents in Iowa to call for a hold on the Iowa Utilities Board’s permit proceedings.
Summit’s proposed adjustment would shift the pipeline farther north of Bismarck — the second-most-populous city in the state — in response to concerns that it has the potential to impede the city’s growth.
That change would lengthen the pipeline path by about seven miles. The initial proposal spanned about 320 miles in the state.
The company also modified the route in several places to avoid landowners who don’t want the pipeline on their properties.
Summit on Friday asked the North Dakota Public Service Commission to reconsider its Aug. 4 denial of a siting permit for the company. The three-member commission said the evidence it considered did not show “the project will produce minimum adverse impacts upon the welfare of the citizens of North Dakota,” according to its written decision.
The permit denial was an aberration for the state, which is one of the largest oil producers in the country. The commission has not rejected any other pipeline siting permits in at least nine years, said Victor Schock, director of public utilities for the commission.
“I don’t recall the last time we rejected a pipeline permit,” he said.
The commission’s last siting permit denial for a utility project was in 2019, Schock said. That was for a wind farm.
It was Summit’s insistence that the record of evidence was complete for its application — and that no further hearings were required — that led some of its information to be excluded from full consideration, Schock said.
“The problem is that the record isn’t complete until you get the evidence entered and then allowed for cross examination,” he said.
The company’s motion for reconsideration and the information that accompanies it seeks to remedy that. The motion calls for a one-day hearing “for the limited purpose of presenting witness testimony.”
The commission had noted there were deficiencies in the record of evidence pertaining to cultural sites, public wildlife areas, geologically unstable areas and landowner impacts.
Schock said the company’s motion for reconsideration is allowed by state rules, but “I can’t speak to whether the commission will grant the petition or not. We will certainly need to review what the appropriate next step is.”
Schock is not a member of the commission but rather part of the commission’s staff who helps facilitate the process. If the commissioners deny the reconsideration request, Summit can appeal in state court or file a new application with the commission.
The commission’s denial of the permit was about 10 months after Summit applied.
State regulators in Iowa and South Dakota are poised to hold final hearings for the company’s permits. Iowa’s starts on Tuesday, and South Dakota’s begins Sept. 11.
“With the Iowa Utilities Board hearings starting this week, the South Dakota Public Utilities Commission hearings starting next month, and the filing of the petition for reconsideration in North Dakota, we believe our project will still, if approved, move into construction in the first half of 2024,” the company said.
State officials are recommending a water-rights permit for a carbon dioxide pipeline company, but some nearby residents who use the same aquifer fear they could be negatively affected.
A corporate entity affiliated with Summit Carbon Solutions, called Redfield SCS Capture, has applied to drill a well that could take up to 21 million gallons of water per year from the Dakota Aquifer, which is an amount equivalent to about 32 Olympic-sized pools.
The well would be about 1,100 feet deep and located a few miles north of Redfield, in the same area as the Redfield Energy ethanol plant, which is a partner in the Summit pipeline project.
The state Department of Agriculture and Natural Resources said in a written statement to South Dakota Searchlight that the water will be used for “non-contact cooling.” The department provided no further information, and Summit did not respond to multiple Searchlight messages. Other sources interviewed for this story speculated the water will be used to cool pipes carrying pressurized carbon dioxide.
After its use, the water would be discharged into a local waterway, DANR’s report says. The report does not say which body of water, but the site is near Turtle Creek and the James River.
Summit Carbon Solutions wants to capture carbon dioxide emitted from ethanol plants in five states. The gas would be pressurized into a liquid form and transmitted via pipelines to North Dakota for storage underground, to prevent the gas from trapping heat in the atmosphere. For its purported value in helping to fight climate change, the $5 billion project would be eligible for up to $1.5 billion in annual federal tax credits.
Neither DANR nor Summit responded to questions about whether Summit will apply for new water rights and wells at other locations.
The water source, the Dakota Aquifer, is a porous rock and sand formation where water gets stored as it trickles underground. It underlies about 66,500 of South Dakota’s 77,000 square miles of land. A 1982 report cited by the state indicated the aquifer held about 124 trillion gallons of “recoverable water storage” east of the Missouri River in South Dakota.
In a June 29 staff report, state Chief Engineer Eric Gronlund recommended approving the application, saying there’s enough water available for it, it’s unlikely to harm existing water users and it’s for a useful purpose.
Permit gets contested
Because some nearby residents sent opposition comments to the state during a public comment period, the proposed permit will be the subject of a contested case hearing this fall.
One of those nearby residents is Debra Curtis, who ranches about 2.5 miles from the proposed Summit well and fears it would “reduce the water pressure and flow of my well.”
Dave and Stacey Marlow wrote to the department that their drive-in theater “will not have adequate water pressure to continue business” if the project is permitted.
“I was told that much water being extracted will create a cone-shaped vacuum into the aquifer,” Dave Marlow told South Dakota Searchlight. “And for wells only a mile or so away, like ours, there’s just not enough pressure.”
Jay Gilbertson manages the East Dakota Water Development District, based in Brookings. He said Marlow was referring to a “cone of depression,” a term describing the shape that forms in the water table around a well when water is pumped out – like drinking a milkshake through a straw.
“When water is pumped out of a well, the water level closer to the well goes down,” Gilbertson said. “If too much water is taken out, it can cause problems for the wells in the surrounding area.”
Gilbertson also referenced language in the state staff report that says if problems with existing residential systems occur, the company has to stop or at least reduce its usage.
Bureaucratic processes
Dave Marlow said a state employee told him he could “see a drastic decline in pressure” and that a lot of paperwork and bureaucracy would stand in the way of stopping Summit Carbon Solutions from pumping.
“I know the guy’s name but I really don’t want to give it out,” Marlow said.
Debra Curtis said a state employee she declined to identify told her something similar. But when she tried to contact the employee again, she was unable and was later referred to Ian Fury, the governor’s spokesperson.
“He assured me that as a resident, we’d have priority over the company,” Curtis said. But she remains skeptical about how long it would take to force a large pipeline company to stop pumping water.
The Department of Agriculture and Natural Resources did not immediately respond to Searchlight questions regarding the claims from Marlow and Curtis about the state employee who spoke with them.
Marlow said he and his wife only found out about Summit’s water-rights permit application by reading the legal section of their local paper.
“Most people have no idea what’s going on or that it’s even happening, and I think they’re going to have a big problem coming down the road,” Marlow said. “Nobody reads the notices in the paper anymore.”
To oppose the application, comments had to be filed with the state’s Water Rights Program by July 24.
South Dakota Searchlight sent the Department of Agriculture and Natural Resources questions about the proposed permit on July 11, July 13 and Aug. 10, but didn’t get a response until Aug. 11.
“The public notice period for this application has closed,” department spokesperson Brian Walsh wrote.
He added that three people or entities — Curtis, the Marlows and another rural Redfield resident, Brad Hekrdle — filed comments that automatically triggered a contested case hearing, which will take place Oct. 4 in Pierre before the state Water Management Board.
Meanwhile, the state Public Utilities Commission’s hearing on Summit’s pipeline permit application will begin Sept. 11 and is scheduled to run 13 days at the Casey Tibbs Rodeo Center in Fort Pierre.
The commission has already conducted hearings on another carbon pipeline, proposed by Navigator CO2, and is expected to issue a decision on that project soon.
Will Summit Carbon Solutions' planned $5.5 billion carbon capture pipeline across Iowa provide a public benefit to the state and its residents?
That will be the question at the heart of a monthslong hearing scheduled to begin Tuesday in Fort Dodge as Summit seeks a permit from the Iowa Utilities Board to build the 700-mile Iowa segment. The planned pipeline would transport liquefied carbon dioxide emissions from ethanol plants and other agriculture-based industries in Iowa and four other states to a deep subterranean sequestration site in North Dakota.
Jennifer Zwagerman, a Drake University law professor and the school's Agriculture Law Center director, says a core legal consideration as the board decides whether to grant the permit will be whether it promotes “public convenience and necessity."
Landing a permit would be the first step to Summit winning eminent domain powers to force unwilling landowners in the project's pathway to sell the company access to build the pipeline. Summit has said about 480 property owners rejected easement overtures.
Possibly helping Summit is the last controversial hazardous liquid pipeline state regulators considered. In the 2016 Dakota Access case, the utilities board determined it could weigh a pipeline's public benefit beyond Iowa as it granted developers a permit to build the $4 billion crude oil pipeline that cuts a diagonal northwest-to-southeast path across the state.
"The board will consider all benefits of a proposed hazardous liquid pipeline, regardless of whether they are Iowa-specific benefits," the board said in that case.
Zwagerman, though, says it might be trickier for Summit to demonstrate the pipeline would benefit more than just ethanol producers. . . .
Thousands of Iowans have flooded the Iowa Utilities Board with messages expressing their concerns and opinions about Summit Carbon Solutions' much-disputed proposal to build a $5.5 billion carbon capture pipeline across a 700-mile swath of Iowa.
On Tuesday, the Ames company goes before the board to launch a months-long hearing on its request for a permit to build the Iowa portion of the hazardous liquid pipeline. It's also seeking eminent domain powers to force about 480 landowners to sell access to their property for the project, which would capture carbon dioxide emissions from ethanol and other agriculture plants across Iowa and four other states, liquefy it under pressure and transport it via the pipeline to North Dakota for sequestration deep underground. . . .
Austin Hayek, 37, believes it’s fundamentally wrong for Iowa farmers and landowners to be forced to give a corporation access to their land.
Summit says it’s gained voluntary agreements with about 70% of the landowners along the 700-mile section of the pipeline through Iowa. But Hayek and his father, Allen, are among the 480 holdouts whose property Summit wants to gain access to through eminent domain.
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