Above photo: Chris Nelson, the two-term incumbent commissioner on the Public Utilities Commission, speaks to the Beadle County Republican Women in Huron. Jason Harward / Forum News Service.
The South Dakota PUC determined Navigator did not seem to be fully intent on complying with the law of the land.
Pierre, SD – The South Dakota Public Utilities Commission on Wednesday, Sept. 6, unanimously denied Navigator CO2 Ventures’ project application to build a CO2 pipeline in the state, determining that the company did not seem to be fully intent on complying with the law of the land if its application for the Heartland Greenway Pipeline was approved.
“The burden of proof is on the applicant,” Commissioner Kristie Fiegen said. “Here, they have raised their hand and have chose to not comply and have asked for an exemption from local laws.”
Navigator responded to the decision saying it will evaluate the written decision of the Public Utility Commission once issued and determine its course of action in South Dakota thereafter.
“While we are disappointed with the recent decision to deny our permit application in South Dakota, our company remains committed to responsible infrastructure development,” a representative from Navigator wrote to the Mitchell Republic via email comment.
The Navigator project involves ethanol plants in five states, South Dakota, Minnesota, Nebraska, Iowa and Illinois, with storage sites in Illinois. The company is developing the Heartland Greenway to provide ethanol producers and other industries a way to reduce their carbon footprint, taking advantage of federal tax credits that encourage carbon capture. It is one of two carbon capture projects involving the ethanol industry in South Dakota, the other being the Summit Carbon Solutions project.
Sioux Falls-based POET, the world’s largest producer of biofuel, signed on to the project in June 2022. The pipeline would connect to five ethanol plants in South Dakota.
Moody and Minnehaha counties are among counties to have enacted new rules on buffer zones between underground pipelines and homes, schools and cities. A request by the Navigator to preempt the ordinances from Moody and Minnehaha counties regarding zoning for the pipeline was the biggest reason the commissioners gave for denying the application.
“Minnehaha had every right to respond to changing conditions, a new and emerging land use,” Alex Hagen, an attorney representing Minnehaha County during the decision hearing, said before the commissioners had even revealed their decision. “The preemption motion is an attack on legitimate authority of local government.”
Commissioners agreed that moving to preempt the ordinances would be unprecedented and would leave implications for future PUC decisions that would undercut the lawmaking authority of local governments.
A state agency making a decision that trumps local laws would have directly negatively impacted landowners, Rep. Marty Overweg of New Haven told the Mitchell Republic.
“Counties are funded through land taxes, and none of them want to see a big change because who’s going to take care of them if they can’t fund themselves?” Overweg said.
Commissioner Gary Hanson said it was not at all clear to him that Navigator was willing to comply with those ordinances if the PUC were to grant its application. Hanson said the PUC staff relayed to him that Navigator was frequently not prompt, thorough or forthcoming in complying with the application process, and some forms of testimony that were supposed to have public comment were submitted so late as to not allow for any.
Even beyond Navigator’s “dilatoriness” (his word), Hanson said he was disappointed with the way the company avoided publicly sharing plume studies with the public to allay fears or discomfort with the dangers of the project.
“Not all pipelines are created equal, but Navigator has insisted this project be treated like every other pipeline,” Hanson said.
Not to mention, he said, the significant backlash from landowners to the company’s use of eminent domain to move the project forward.
“Navigator appears to be tone-deaf to the people’s outcries,” Hanson said.
This is a brand new form of toxic liquid pipeline, Hanson said, and the lack of familiarity with the new technology, and the lack of resources available to emergency responders to respond to a potential gas leak, should not be ignored when deciding such an application, Hanson said.
He was not convinced that Navigator was prepared to work with local government and other governing bodies once the project was approved to accommodate these new potential risks.
Of the commissioners, Nelson was the most forgiving in his assessment of the project proposal and application discussion.
Nelson said he knew from the outset of the hearing that the reference point for discussing the health risks and dangers of such a project would be the pipeline rupture incident in Satartia, Mississippi.
Nelson said comparing a hypothetical breach in the proposed pipeline project and the Satartia incident was “like comparing a garden hose and a fire hose,” since the Satartia pipe was at least nine times larger than the proposed Navigator pipeline would be at any point.
Still, Nelson agreed that throughout the hearing, the opposing party to the application, including opposing landowners, were the only ones to address the issue of the well-being of the individuals who would be affected by this project.
Nelson said the high percentage of landowners who chose to refuse to negotiate an easement with Navigator CO2 was a significant factor in his decision to deny. Those individuals, through their testimony, resoundingly stated that this project would negatively impact their well-being — emotionally, physically and economically.
Ultimately, Nelson said, the state law that empowers the PUC to make the decision to approve these types of projects also directs them to weigh the well-being of affected parties with the value of the project, as well as avoid undermining the powers of affected county governments.
“The statute requires us to give a strong hat-tip to local governing bodies,” Nelson said.
Overweg told the Mitchell Republic the commissioners did the right thing in listening to the counties, and that this is a huge win for landowners and the doctrine of property rights in the state of South Dakota.
“I think this sets precedent,” Overweg said, “Not just on pipelines, but any of these companies that want to come in and force eminent domain on private landowners for their personal gain.”
The PUC is scheduled to hear testimony about the next carbon sequestration pipeline project application, this time from Summit Carbon Solutions, from Sep. 11-22.