(John Hult/South Dakota Searchlight) – South Dakota counties have taken extraordinary steps to interfere with state-level permitting for two carbon dioxide pipelines, a pipeline representative told the South Dakota Public Utilities Commission on Thursday.
The assertion was part of a PUC hearing at which the commission is being asked to preempt and overrule pipeline-related rules enacted by several South Dakota counties since last year.
Moody and Minnehaha are among the counties to have enacted new rules on buffer zones between underground pipelines and homes, schools and cities, and each had a lawyer present on Thursday in Pierre. Each county’s ordinance came in response to public concerns about the two pipeline projects, which would carry carbon gas from ethanol plants in the upper Midwest away for underground sequestration.
The pipeline companies would be eligible for billions in federal tax credits, and the sequestered gas would help ethanol producers sell their products in states with tight carbon emission reduction goals.
Navigator CO2 Ventures was recently subject to more than a week of scrutiny during a PUC hearing on its pipeline proposal that could lead to an approval or denial of a pipeline permit in South Dakota. That decision’s meant to come on Sept. 6.
This week’s hearing came as Navigator asked the PUC to overrule county zoning ordinances for multi-county pipelines.
The decision could impact Navigator and a similar project from Summit Carbon Solutions, whose PUC permit hearing is set to begin next month.
“The several counties are now taking it upon themselves to set a Balkanized energy and transmission policy for the State, a task that has been, is supposed to be (and should be) left to this Commission,” Navigator’s legal team wrote in its brief on the matter.
Pipeline rep: County interference bad for project, residents
On Thursday, the first of two possible days of testimony in Pierre on the preemption issue, commissioners heard testimony on county ordinances enacted by Minnaheha and Moody counties.
Navigator’s Monica Howard testified until 5 p.m. during the nearly 10-hour hearing. She told commissioners she’s been involved in pipeline siting discussions for more than 20 years, she’d “permitted in the majority of states,” and that the South Dakota counties’ decisions stand out nationwide.
In other states, Howard said, county concerns “have all been related to above-ground facilities and pieces of the pipeline infrastructure that have the potential to interfere with land use.”
Underground pipelines don’t interfere with land use, Howard said.
The buffer zones enacted in Minnehaha County, she said, would make it all but impossible for Navigator to move ahead with its project on a reasonable timeline.
Some provisions are restrictive to the point of unworkable, she said. Rules requiring a setback measured from the pipeline to the property line of large parcels of land, for example, might work against the county’s goals of keeping the pipeline a purportedly safe distance from homes with human residents.
“It forces us to avoid large parcels with one person on them,” Howard said. “Complying with the ordinance would put us closer to two residences than we were beforehand.”
Just north of Minnehaha County, Moody County first passed, then extended, a moratorium on pipeline construction. It then passed an ordinance requiring a 1,500 foot setback from “schools, daycares, churches, dwellings, manufactured homes and all permitted Concentrated Animal Feeding Operations.”
As in Minnehaha County, she said, the ordinance would make it difficult to route the pipeline at all, and would put the pipeline closer to sensitive areas than its original route.
“Instead of being somewhere a landowner would like us to be, we might wind up in their drain-tiled field,” Howard said of Moody County’s ordinance. Drain tile is a system of underground perforated pipes that carry excess water away from farm fields.
Opponents: pipelines not banned
Lawyers for the landowners who oppose the project and the two targeted counties let loose a flurry of objections to the exhibits presented by Navigator this week to make its case for preemption of county authority.
They objected to plume modeling maps from Navigator that show how far carbon gas would extend in the event of a catastrophic rupture. Commissioners voted to make it public, but called it incomplete and said it would need to be redone if the pipeline were permitted and built.
Brian Jorde, the lawyer for landowners, pushed Howard on the source of the plume map and argued that its conclusions aren’t reliable or complete. He made similar arguments about maps from Navigator showing new routes the pipeline would be forced to take in the face of the county ordinances, and about a document outlining Navigator’s position on how many additional miles of pipe the company would need to build if the county rules stay in play.
The documents, Jorde said, were attempts by Navigator to sneak opinions onto the PUC docket.
“This is an argument they’re putting into an exhibit here … these are not precise for what they’re asking for, which is an incredibly high bar,” Jorde said. “They’re asking to overrule the counties.”
Most of the exhibits were entered into evidence in spite of such objections.
Alex Hagen, the lawyer for Minnehaha County, challenged Navigator’s assertion that its ordinance would scuttle the pipeline.
Hagen noted that the county’s setback requirements, if met, would allow Navigator to build its pipeline as a “special permitted use” project. The company could also get waivers to those setback requirements from 29 Minnehaha County landowners along Navigator’s desired pipeline route who live within them.
Even if it weren’t able to do either of those things, Navigator could apply for a conditional use permit. Doing so would put the question before the county zoning board, then the county commission.
“This doesn’t block you from proceeding to build the pipeline,” Hagen said.
Hagen also asked Howard to confirm that her company has not attempted to seek waivers, nor has it begun the conditional use permitting process. Instead, it challenged the ordinances at the PUC level.
Moody County attorney Paul Lewis tore through a similar line of questioning, asking Howard several times if his county’s rules block Navigator’s pipeline. Lewis, like Hagen, referenced maps Howard had offered to show alternative routes.
Under intense questioning from Lewis, Howard conceded that the ordinance’s restrictions don’t completely wipe Navigator off the Moody County map.
“A pipeline could be threaded through Moody County,” Howard said.
‘You’re making me out to be a toddler’
Navigator attorney James Moore had a chance to follow-up after the county lawyers questioned Howard.
He returned to the issue of 29 waivers the company would need in Minnehaha County.
“If one of those 29 people says ‘no’ … what is your remedy?” Moore said.
In Minnehaha County, Howard said, the company would be pushed into the conditional use permitting process and put the project’s future in the hands of county commissioners.
Objecting landowners in Moody County, she said, would shut down the multibillion dollar, multi-state pipeline project.
Jorde, the lawyer for landowners, tried to get Howard to admit that Navigator could easily reroute its pipeline either around Minnehaha County or within it, that the company could’ve asked the 29 landowners for waivers and hasn’t, and that Navigator could ask for an extension from the PUC.
“Don’t you agree that Navigator is solely responsible for the timeline?” Jorde asked, more than once, on one occasion noting that an entity seeking a permit can ask for a delay from the PUC.
“We could draw this out for 15 years if we wanted to,” Howard said, “But we wouldn’t want to do that.”
Jorde also asked Howard multiple times why it hasn’t “simply asked the 29 landowners” in Minnehaha County for waivers to be sure the ordinance would actually make it “impossible” to comply with the PUC’s expectations in a timely fashion.
Howard accused Jorde of misrepresenting her testimony and underestimating the difficulty of connecting and negotiating with landowners.
“You’re making me out to be a toddler throwing a temper tantrum,” Howard said. “You’re undermining me, and you’re undermining the entire process and the reason we’re here.”
Kristen Edwards, the staff attorney for the PUC, asked Howard about her interactions with the counties. The company shared some of its plans and documents, but not all of them. For example, it presented the distances it believed a carbon plume would travel in an emergency, which formed the basis for Navigator’s suggestions on setbacks for Minnehaha County commissioners, but it did not share the plume modeling maps until Thursday’s PUC hearing.
Moody County, Howard said, did not request plume modeling.
“If they did, they did not ask us,” Howard said.
Under questioning from Edwards, Howard said there were times in Moody County that Navigator was not always allowed to present their position in meetings on pipeline rules.
She also told Edwards that moving the pipeline route to comply with Moody County’s rules would be impractical and potentially impact more landowners.
“Our ability to move the route is extremely limited,” Howard said.
Howard also told Edwards that she’s only been involved in two pipelines across two decades that were denied permits, and that counties almost never have a say in a project’s permitting.
County: we listened, compromised
Minnehaha County Commissioner Joe Kippley took the stand in Pierre shortly after 5 p.m.
Moore, questioning on behalf of Navigator, pushed Kippley on the purpose of the ordinance. Counties are empowered to manage development on their land, but Navigator argues that the ordinances go far beyond that, aiming to protect public safety despite what it describes as a low-risk project. Howard also said several times on Thursday that an underground pipeline upon or near which the land can be developed doesn’t impact county land use planning.
Kippley testified that his county’s ordinance was primarily about land use planning. He called safety a secondary effect, but admitted that “a large portion of the testimony received from various members of the public involved safety.”
Kippley was also questioned on his unsuccessful attempt to lower the setback requirements, based on carbon pipeline safety guidelines in an emergency management guidebook from the federal Pipeline and Hazardous Materials Safety Administration.
That manual cites 330 feet as a “safe” distance, Kippley said. The ordinance ultimately required far higher setbacks for schools, churches and cities. Moore read Kippley his own testimony on the day of the ordinance vote, which essentially had the commissioner saying that the 330-foot number was based on a document, not an arbitrary number.
“That’s still my position today,” Kippley said.
Minnehaha County made concessions in its ordinance based on Navigator’s feedback, Kippley said, though it didn’t take all of the company’s advice.
“I’m sure a pipeline company would prefer the number zero, but that number came from conversations with a number of different stakeholders,” Kippley said.
Public Utilities Commissioner Gary Hanson asked Kippley if he believes his county’s ordinance makes pipelines impossible.
“The goal was not to kill the project,” Kippley said. “Nothing in this ordinance is impossible. It would just go to a conditional use permit and we would go through that public hearing process.”
Commissioners did not make a decision on overruling counties on Thursday. The hearing is set to continue Friday morning.