NOTE TO READERS: The South Dakota Public Utilities Commission plans to make a decision at its meeting September 6 on whether to grant a permit for Navigator’s proposed carbon-dioxide pipeline. The commission on Tuesday night set an August 28 deadline for the various sides to submit their closing briefs and a September 4 deadline for rebuttals.
PIERRE, S.D. (KELO) — The tone of the Navigator permit hearing turned testy in its final hours Tuesday afternoon.
Brian Jorde, the Omaha lawyer representing South Dakota landowners who don’t want the proposed carbon-dioxide pipeline crossing their properties, didn’t like the substance of questions that Navigator’s attorney, James Moore of Sioux Falls, was asking about the conduct of Jorde and his clients.
Specifically, Moore wanted to know about the status of the negotiations — or in this instance, non-negotiations. Monica Howard, the project’s vice president for environmental and regulatory matters, said Navigator this year had put in place what she called “a stand-down order” to no longer attempt to conduct land surveys on their properties, or to even contact them.
Navigator had offered to pay them for survey access, according to Howard, but, after several attempts, company officials concluded that no one was interested. “Every landowner to my knowledge has received at least two offers,” she said.
Jorde repeatedly objected throughout this line of questioning, but he was overruled each time. When it was his turn to cross-examine her, Jorde asked Howard whether the purpose of Moore’s questions to her was to “fact check” his clients.
Moore’s objection to that question was sustained, so Howard didn’t answer.
That brought a protest from Jorde.
“How can you ask those questions and I can’t ask back?” Jorde asked.
He then moved on to ask Howard whether she or anyone else from the company had approached him with a new offer during the hearing the past three weeks. She didn’t directly say. “What more information do they (the landowners) need to share to get their point across that they don’t want this pipeline on their land?” he asked.
Then he asked Howard whether she would agree that the purpose of the pipeline was to help three ethanol plants at the expense of landowners. Howard said there are additional facilities in South Dakota that are interested, although she didn’t identify them.
She further said 14 of the 15 ethanol plants in South Dakota have committed to shipping CO2 out of state through the pipelines that are proposed by Navigator and Summit Carbon Solutions.
Jorde asked about uses for CO2 such as “soda pop” and fire extinguishers that he described as “speculative.” Answered Howard, “All industries start somewhere and there’s no denying this is somewhat the beginning of a change in that industry.”
Jorde turned to whether pipeline construction would leave lasting effects on crop production. He asked how many years it will take crops to return to 100 percent production. She said, “Well under ten years.” He said linear projects still scar the earth 10 and 20 years later. She said construction techniques have improved.
“Sometimes it wasn’t done right in decades prior. Sometimes it was,” she said.
So Navigator will just do it better? Jorde asked. Howard didn’t back down. Based on Navigator’s plans, she said, “That’s exactly what we’ll do.”
Later Jorde asked whether it was “engagement” to have landowners drive “four or five hours” to attend the hearing for a project they don’t want.
“Yes, I think engagement requires conversation between two parties and — there’s a lot of misinformation out there as well,” she said. “Not being able to speak with those landowners furthers that distance between us and them.”
The commission must reach a decision on the permit before the end of September. The commission has set aside August 24-25 to consider the question of whether it should supersede pipeline zoning ordinances recently passed in Minnehaha County and Moody County. Howard said she plans to testify. Navigator officials say their project can’t happen if the ordinances stay in place.
Howard was in a similar role as environmental manager for the Dakota Access crude-oil pipeline project and testified during the commission’s 2015 hearing on its South Dakota permit. Kristen Edwards, a PUC staff attorney, asked Tuesday what could have been done better on Dakota Access. Replied Howard, “That inspection program may have been built out better than what occurred.”
Navigator would be South Dakota’s first CO2 pipeline. Commission chair Kristie Fiegen asked Howard whether a judge in an eminent-domain proceeding should have access to a plume study. Howard, who has never before been involved in a CO2 pipeline project, but has had roles in arranging for other potentially explosive pipelines, said she had never provided a plume study to a judge and wasn’t aware that anyone had.
Responded Fiegen, “We have a pipeline right now that doesn’t compare apples to apples. It’s different, it’s new in our area, and that’s why we’re going to continue to ask questions.”
Commissioner Chris Nelson asked whether Navigator could provide a map so that the public could understand the potential danger from a pipeline rupture. Howard said she couldn’t do that.
That, Nelson replied, may mean the company and the commission will find they are at “an impasse.”
Nonetheless, Howard told Jorde that public responders could use the ALOHA model to replicate conditions in real-time at the location if a rupture occurs. She said ALOHA is used when responding to many emergency situations. “It’s common practice,” she said.