Brian Jorde, at right, and Ryan Cwach, attorneys for opponent landowners, participate in a Public Utilities Commission hearing July 25, 2023, in Fort Pierre on the permit application for the proposed Heartland Greenway carbon dioxide pipeline. (Joshua Haiar/South Dakota Searchlight)
Brian Jorde said most people didn’t think he or his clients had much of a chance to stop a pair of carbon dioxide pipelines after the plans were announced two years ago.
“‘You all are a nuisance. We all know this is getting permitted.’ That has been the attitude of these pipelines since day one, and here we are,” Jorde said.
In September, with Jorde representing more than 1,000 affected landowners, the Public Utilities Commission rejected permit applications from both of the companies proposing carbon pipelines in the state.
Both projects carried multi-billion-dollar price tags. Project backers sought to capture carbon dioxide emissions from ethanol plants in multiple states and transport it in liquefied form to be “sequestered” at an underground storage site. Tax credits are available from the federal government for every metric ton of sequestered carbon dioxide, as an incentive to prevent emissions of the heat-trapping greenhouse gas.
Since the permit hearings, Navigator CO2 has withdrawn its project. Meanwhile, Jorde and some of his clients are preparing for an anticipated reapplication from Summit Carbon Solutions, which has said it plans to alter its proposal.
Jorde said he’ll be ready to leverage his experience with pipeline cases, including his prior work against a crude-oil pipeline.
‘Like ‘The Karate Kid”
Jorde, 47, grew up in Nebraska and had a colorful period of finding himself in early adulthood – living in Australia for a short stint, and later making art and music in Michigan. But in the end, because of a “passion for justice,” Jorde said, “all roads led back to what I knew was my destiny, which was to practice law.”
He passed the Michigan bar exam in 2007 and did some work there, but soon packed up and headed to Omaha where he would join his stepfather’s firm, Domina Law Group.
David Domina immediately handed Jorde “three completely hopeless cases” — civil cases with strong evidence against the clients’ positions.
“I didn’t know I couldn’t win these cases,” Jorde said. “I didn’t know until later that that was all part of his plan.”
That baptism by fire taught Jorde three things, he said: “Get comfortable being uncomfortable, learn to think on your feet and be humble.”
“It’s kind of like ‘The Karate Kid,’” he said, referencing the 1980s movie franchise. And like the dojo operated in the movies by a character named Mr. Miyagi, Jorde added, “Our practice is always on the side of the less capitalized, less wealthy, less connected than our opponents.”
Jorde’s introduction to pipelines came in 2008 when a longtime client’s mother called about the proposed Keystone XL oil pipeline’s attempted use of eminent domain to cross her land. “Eminent domain” refers to the power to access private property for public use, provided the owner is given just compensation.
“She was in tears, and there was this company up there called TransCanada that said if she didn’t sign papers, they’re gonna take her land by eminent domain,” he said.
Jorde says he is far from a pipeline expert — but adds that he doesn’t have to be.
“I’ve learned the art of thinking and strategy,” he said. “The foundation of all this is being able to strategize, think, see around corners, and anticipate what’s coming. If, then, therefore.”
Jorde took her and others on as clients, and the 11-year journey taught him a lot about eminent domain law and pipeline construction. He also learned that while many landowners may oppose a project crossing their land, a lot of those landowners are convinced it’s a hopeless cause.
“We basically had to convince people that it was OK to stand up for themselves,” Jorde said. “Practically speaking, our country is currently by and for the corporations, and anyone who believes it’s by and for the people is misinformed. However, all we can do is chip away and chip away, and exercise our rights.”
The Keystone XL oil pipeline was never built after President Biden revoked a key permit. Jorde said he played a role in that with his clients.
“We outlasted three presidents,” he said. “Every other state had fallen, and the work we did in Nebraska kept the fight alive until the end.”
Jorde thinks that because landowners saw clients like his fight Keystone XL successfully, convincing landowners they could win against the carbon sequestration pipelines was easier.
Ed Fischbach of rural Aberdeen is one of Jorde’s clients in the carbon pipeline cases. Fischbach said the law firm charges all the South Dakota landowners as one group, and the charge is split evenly among the landowners.
“I wouldn’t trust anyone else to do this,” Fischbach said. “The guy has been the greatest thing for South Dakota landowners.”
Jorde said what an individual landowner pays per month varies, from “less than $100 to several hundred depending on the intensity of the effort and the time invested.”
“In group representation, the landowners end up paying pennies on the dollar,” Jorde said. “It’s all for one, and one for all.”
Corralling the herd
The Summit project would span five states: North Dakota, South Dakota, Nebraska, Iowa and Minnesota. Navigator would have spanned South Dakota, Nebraska, Iowa, Minnesota and Illinois.
Representing over 1,000 landowners spread among all of those states except Minnesota and Illinois has kept Jorde busy.
“Yeah, the number of emails saying, ‘I just need five minutes,’” he said. “It adds up.”
The landowners who hired Jorde come from across the political spectrum – from those who want more CO2 in the atmosphere with the hopes of improving crop yields, to those who think climate change is a serious threat to national security.
All of them are focused on the shared goal of not allowing the projects to use eminent domain.
“It’s very simple: Let’s focus on where we agree, and let’s work like hell to get to the finish line together,” Jorde said. “And if we have other things we disagree about, who cares? We don’t have time for distractions.”
Jorde said the arguments he presented in South Dakota during the permit hearings were tailored for the three elected public utilities commissioners who decided whether to grant the permits.
“Those are the only people that matter,” he said.
Jorde said what brought down the Navigator pipeline “wasn’t the money.” The company had partners such as BlackRock, a multi-trillion-dollar global asset management firm.
“It’s that they weren’t as entrenched politically as Summit,” he said.
Summit and Round Two
Summit contracted 14 lobbyists during the last legislative session, including Pierre attorney Brett Koenecke.
“I don’t think Mr. Koenecke and his team have ever been on the end of a losing infrastructure project,” Jorde said.
Koenecke was one of the lawyers representing Keystone XL, which gained a permit in South Dakota before being rejected federally. “And the clients they work for aren’t used to losing either,” Jorde said. “And that combination is the greatest one for me to go against.”
Jorde contrasted himself, saying “I presume the other person is smarter and knows more than I do.”
“Everyone on the other side was so sure because they had the power, they had the politics,” he said.
Some of those political connections are publicly visible. Summit Carbon Solutions was one of five platinum sponsors for Gov. Kristi Noem’s second inauguration in January. After the Public Utilities Commission rejected Summit’s permit application, Senate President Pro Tempore Lee Schoenbeck, R-Watertown, sent texts (which were later publicly revealed) to one of the commissioners criticizing his vote.
“U anti ethanol people need to be out of public office. Bad for South Dakota,” Schoenbeck wrote in one of the messages.
While the projects are backed by billion- and trillion-dollar companies, Jorde said just like Navigator, Summit could collapse if investors become skeptical.
“At the end of the day, their owners are investors, and all they want is a return,” he said. “And when you get investor confidence a little shaky, they’re like, ‘Listen, I can make money elsewhere, I don’t need this.’ That’s when the project starts to unravel.’”
Jorde said his side’s celebration was short-lived.
“We had our congratulations, and that lasted about five minutes,” he said. “And I said, OK, not to be a Debby downer, but here’s what we’re not going to do: lose focus. Because right now, they’re planning a strategy.’”
Jorde told landowners to push counties to enact and enforce setback ordinances that determine how close a carbon sequestration pipeline can be built to existing houses, farms and other features.
Some counties including Minnehaha and Moody already have such ordinances, which public utilities commissioners unanimously decided they will not overrule. That’s despite the pipeline companies having argued the setbacks are unworkable.
Jorde also told landowners to lobby harder in the state Senate, where a bill failed last winter that would have banned eminent domain for carbon pipelines, after passing the House.
“This has really fired up people who thought all this couldn’t happen,” he said. “This participation in our democracy is so critical to keeping this country a country.”