Summit pipeline permit process in North Dakota has reached ‘uncharted waters’

By Jared Strong, Iowa Capital Dispatch

It’s not yet clear how utility regulators in North Dakota will proceed with their reconsideration of a pipeline permit for Summit Carbon Solutions.

The state’s Public Service Commission granted the company’s reconsideration request with a split vote on Friday. It had unanimously denied Summit’s permit application in August because the company didn’t sufficiently show that its carbon dioxide pipeline proposal minimized its effects on the public.

State law allows for such reconsiderations but does not dictate how they should proceed and when they should conclude, said Victor Schock, director of public utilities for the commission. He said the commission has not agreed to reconsider another denial in recent memory and that such denials are themselves rare.

“We’re kind of in uncharted waters to a certain extent,” Schock said.

The state is crucial to Summit’s five-state pipeline system, which would transport captured carbon dioxide from more than 30 ethanol plants to North Dakota for underground sequestration.

The plan has suffered setbacks in North and South Dakota, both of which denied the company’s permit applications. Summit has said it awaits an official denial order in South Dakota before it decides how to proceed in that state.

In North Dakota, Summit could appeal a denial in court or submit a new permit application, but it opted for reconsideration because that will likely be the most expeditious path forward.

Summit has made hundreds of changes to its route to assuage landowners. It has also moved the route farther away from Bismarck over worries that the project might impede urban development.

The company has sought one more public hearing to weigh those changes and to address other concerns of the commission, but the commissioners have yet to determine whether there should be more than one.

There were four public hearings for the project in March, April and May, each with a focus on a group of different counties along the route. There are a total of 10 counties.

“I would expect that, at a minimum, we would issue notices of opportunity for a hearing for every one of those counties,” Schock said.

It’s unclear when those notices will be issued and the hearings scheduled. Schock said commission staff is seeking more details from Summit before the reconsideration proceeds.

“Certainly we’re not going to look to rush this, but we’re not going to drag our feet either,” he said.

In a 2-1 vote on Friday, the commission granted Summit’s reconsideration request because state law calls for a “just, speedy, and inexpensive determination of the issues presented.” Forcing Summit to reapply would cause the commission to recreate a voluminous record of evidence, and the initial permit process took about 10 months.

The dissenting commissioner, Sheri Haugen-Hoffart, said the company doesn’t deserve a reconsideration because it had ample opportunity to submit its evidence earlier. She argued that the proposed changes to the route are so numerous they should require a new application.

Summit has also sought to limit the scope of what can be discussed in a new hearing. Those who oppose the project want the rehearing process to be “reopened to all issues,” which might include pipeline safety, eminent domain and other broad points of contention.

“These tactics are part of the intervenors’ larger goal to delay the project to the point where construction of the project is no longer economically viable,” wrote Lawrence Bender, an attorney for Summit, in a recent commission filing.

In Iowa, a final evidentiary hearing for the company’s permit request is in its fifth week. Summit has sought an Iowa Utilities Board ruling on that request by the end of the year with a hope to start construction next year.

The company has indicated it will not build its pipeline in Iowa if it doesn’t get approval from the Dakotas.

— Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus 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 Twitter.