Hyperion's Day In Court

The largest project ever proposed in South Dakota will have its day in front of the state's highest court in two weeks.

After years of permitting and court battles, the decision about Hyperion's air permit for a $10 billion oil refinery near Elk Point will be up to the South Dakota Supreme Court. The justices will hear nearly two hours of arguments on the permit on October 3.

"We think the applications have never been accurate and complete from the standpoint of acknowledging what the air and water pollution can and will be based upon our experience with other refineries," Ed Cable with Save Union County said.

Cable is with the group Save Union County.  It's one of three groups opposing the project and appealing Hyperion's air permit to the state's highest court. The upcoming October hearing is the final appeal for the permit.

"We haven't won at any level in the state so far, so we're hoping that the Supreme Court will take a look at the issues differently than the lower courts and recognize that the case law we have cited in fact do apply," Cable said.

Hyperion was granted its air permit to put a refinery on land north of Elk Point in 2009 and opponents challenged it in state court right away, saying there wasn't enough research done on the impact of the project. It's the same case they will be presenting to the justices.

The main point that opponents will be arguing is that Hyperion should have been required to do an environmental impact study before it got its air permit.  It's something the company has never had to do since the project was proposed more than five years ago.

"If in fact a $10 billion environmentally-affected project that will create both water and air pollution over a 200-mile diameter area isn't sufficient to require an environmental impact statement under the laws of South Dakota, we probably don't have a project that would," Cable said.

Hyperion, which has overcome all the court challenges to its permit, declined to comment on this story other than to say in a simple statement that they, "Look forward to presenting our arguments to the Supreme Court."

But at the end of last month, Hyperion appears like it is preparing for even more court challenges ahead because it announced that it is asking landowners at the proposed site of the refinery to sign off on land options that would remain valid until all legal appeals and court cases are finished.

Cable acknowledges that if opponents lose in the Supreme Court, they will continue to challenge future permits for the refinery.

"We believe that no permit should be granted, whether it's this air permit or any other, without a comprehensive environmental impact statement done so that the public, including the permitting agencies, can fully analyze the choices available to them and the affects the project would have," Cable said.

But as of right now, the South Dakota Supreme Court will provide the next major decision for Hyperion as it tries to build the first major refinery in the United States in more than 35 years.

Under that permit, Hyperion is currently required to start construction by March of 2013.