Pipeline opponents poised for Summit permit challenges

By Jared Strong, Iowa Capital Dispatch

Several groups including Floyd County that oppose aspects of a recently approved carbon dioxide pipeline network in Iowa plan to launch challenges to that approval in the coming days that will likely be decided in court months or more than a year from now.

Summit Carbon Solutions wants to build a sprawling pipeline system in five states that would transport captured carbon dioxide from dozens of ethanol plants to North Dakota for underground storage. More than 1,000 miles of pipe would be laid in Iowa, of the overall 2,500 miles.

Last month the Iowa Utilities Commission — then known as the Iowa Utilities Board — said it would issue a permit for Summit’s initial proposal in Iowa with some conditions, including that no construction could begin until Summit has secured approval for the project in the Dakotas.

The deadline to ask the commission to reconsider that final order is Monday, July 15. That is the first step to challenge it.

Floyd County Supervisors join in motions to reconsider

The Floyd County supervisors decided at their meeting last week to join in filing a motion to request the Iowa Utilities Commission to reconsider its Summit Pipeline Solutions decision, on the grounds that eminent domain should not be used for what they argue is a project benefiting a private company.

Attorney Tim Whipple, with the Ahlers & Cooney law firm in Des Moines, has been representing Floyd County along with Dickinson, Emmet, Kossuth, Shelby, Woodbury and Wright counties in intervening in what was then the Iowa Utilities Board’s hearing on Summit’s pipeline permit application. The seven counties have been dividing the legal costs equally.

Supervisor Chair Mark Kuhn said other groups were filing similar motions, and while it is almost certain the IUC will stand by its decision, since it had issued a 507-page document explaining it, it was important for Floyd County to continue supporting its own resolution that eminent domain should not be used for this project.

He said the county’s cost would be one-seventh of the estimated $1,000 cost for attorney Whipple to file the motion.

Kuhn emphasized that this step is not an appeal of the decision, which would have to be filed in district court. That would be a much more expensive process.

At that meeting, Supervisor Jim Jorgensen said he wasn’t sure how much longer the county should take action.

He said he had trouble balancing the number of landowners in the county who were against the project with the larger number who had already signed voluntary agreements with Summit.

“At what point do we let those who still oppose this take the next steps themselves?” he asked, specifically referring to the more expensive process of appealing the decision in court.

Kuhn said filing the motion to reconsider would likely be the last action taken under the county’s agreement with Whipple, and would not have any effect on the property owners who have voluntarily signed easement agreements with Summit and have already received payment.

The supervisors unanimously passed the motion for Whipple to file the motion to reconsider.

The 10-page motion to reconsider was filed with the Iowa Utilities Commission by Whipple on behalf of the seven counties on Friday.

— By Bob Steenson, Charles City Press

The groups that are making reconsideration requests represent a coalition of unlikely allies with sometimes fierce ideological differences on other topics. They plan to challenge aspects of the commission’s decision with arguments that are nuanced by their differing priorities.

“Our allies are our allies,” said state Rep. Charley Thomson, a Charles City attorney who is part of a group of Republican legislators who have challenged Summit’s permit application and supported legislation that would impede it. “I’m not going to pick a fight with the Sierra Club because we differ on some other issues. We are going to march together.”

The legislators, the Sierra Club of Iowa, a large group of affected landowners represented by attorney Brian Jorde, and the seven-county group have indicated they will seek reconsiderations. The counties were the first to file a request, on Friday.

A primary argument that the groups plan to make is that Summit’s project should not be eligible for eminent domain, a government-sanctioned procedure by which Summit can force landowners to allow its pipeline to be built and operated on their properties.

Summit does not take outright ownership of the land but has a right to use it indefinitely as long as the pipeline is still operating. The company had sought eminent domain for about a quarter of its initial 688-mile route in Iowa.

Thomson said the commission’s 507-page order was “disturbingly weighted to find what they set out to find.”

“It comes across as a justification for a decision that was made prior to any of the hearings,” he said this week at a meeting hosted by the Free Soil Foundation in Coon Rapids. “It was, in effect, grabbing evidence that would support them and ignoring evidence that would not.”

Opponents of the project have long griped that the outcome was predetermined because of the political influence of those who would benefit from it. That suspicion was bolstered last year when Gov. Kim Reynolds appointed a new chairperson to the three-person commission, the former chairperson abruptly resigned, and Summit’s permit process was accelerated.

The company had hoped to start construction in 2024, but setbacks in the Dakotas have delayed its plans.

Commission’s findings

The IUC is charged with determining whether to issue a permit for a carbon dioxide pipeline and is the primary arbiter of its route.

It used what it described as a “balancing test” of factors to determine whether Summit’s system would benefit the public. The commission said most of the factors it selected favor a permit for Summit.

Those included: the project’s eligibility for federal tax credits; the potential for ethanol plants to sell their fuels in low-carbon fuel markets; potential effects on climate change; overall benefits to ethanol producers; benefits for the state’s economy; and the superiority of pipelines over other transportation methods.

Commissioners said two further factors — the impact to landowners and safety — weigh against granting a permit. However, the commission said Summit’s proposed safety precautions and the conditions the commission placed on the permit alleviated the negative weight of safety concerns.

“We think it just benefits the pipeline company and the ethanol industry, and it really doesn’t address climate change to the extent necessary to get approval,” said Wally Taylor, a Sierra Club attorney.

He doubts the IUC will change its mind about the permit approval and that the Sierra Club — and others — will file lawsuits in district court.

The commission must respond to the requests to reconsider its decision within 30 days.

Jorde, the landowners’ attorney, declined to immediately reveal what arguments he will make against the commission’s decision: “I can’t discuss strategy or what are the most egregious of the many errors. We are evaluating them all and will pick the ones we think the district court will find most compelling.”

The counties also disagree that the project has enough benefit to the public to merit a permit and argue Summit has failed to attempt to conform its route to local regulations and future development plans, said Tim Whipple, an attorney for the counties.

“The counties have made arguments to the utilities board that the company should be required to comply with local zoning ordinances, particularly setbacks,” he said.

Several counties that adopted ordinances to keep Summit’s pipeline farther away from cities, houses and other places have been sued by the company. A federal judge sided with Summit, but two appeals of the judge’s decisions are pending and might not be resolved until sometime next year.

— Iowa Capital Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and X.