This story has been updated to include filings posted later Friday by SCS and opposing landowners.
PIERRE, S.D. (KELO) — The lead staff attorney for the South Dakota Public Utilities Commission formally requested Friday that the commission deny the application from SCS Carbon Solutions for a state permit for a proposed carbon-dioxide pipeline.
Attorney Kristen Edwards filed a motion that said the project no longer could meet all applicable laws and rules. Her request came one day after SCS withdrew its request that the commission pre-empt pipeline ordinances in several counties.
“It is an undisputable fact is that the proposed route currently violates county ordinances in
Brown, McPherson, Minnehaha, and Spink counties. Unless and until Summit can obtain
waivers or conditional use permits where applicable in order to bring the route into compliance, a permit cannot be granted,” Edwards stated in the motion.
The hearing on the SCS permit is scheduled to start Monday in Fort Pierre.
The commission on Wednesday had unanimously rejected the permit application from Navigator for a CO2 pipeline.
The commission that day also refused Navigator’s request that the state commission pre-empt pipeline ordinances passed by Minnehaha and Moody counties. Watching that decision from the back row of the Capitol meeting room were Pierre attorneys Brett Koenecke and Cody Honeywell, who are representing SCS in South Dakota.
Later Friday, Koenecke filed a response asking the commission to proceed with the hearing.
“Because so much effort and so many resources have been expended in preparing the application and for this hearing, SCS asks that the hearing continue (and) that it be given the opportunity to prove the requirements of SDCL § 49-41B-22 and obtain a permit with the condition that it come into compliance with all applicable local ordinances before construction,” Koenecke wrote. “If this Commission were to rule otherwise–if it were to hold that an applicant must have each county-level permit in hand before a hearing–then this and future projects may be unnecessarily delayed or terminated.”
Attorney Brian Jorde, representing landowners who don’t want to give SCS access, filed in support of denial. Among his points were that SCS has filed condemnation actions trying to force eminent domain access across properties of 107 landowners and a company official has said in pre-filed testimony there’s no other way to get the line through Brown County.
In her motion, Edwards said denial wouldn’t be fatal to the SCS project.
“Rather, it provides Applicant with an opportunity to work with the counties and landowners and refile at such time as Applicant has determined a way to comply with county ordinances or has obtained necessary waivers or local permits such that the route would not be in violation,” she wrote.
“Further, if Applicant fails to obtain compliance at the county level and suffers a realized injury under that process, they can renew their preemption request under 49-41B-28 once they refile. SDCL 49-41B-13 provides that ‘[t]he commission shall, upon denying or returning an application, provide the applicant with reasons for such action and shall allow the applicant to make changes in the application in order to comply with the requirements of this chapter.'” she continued. “Therefore, the necessary, logical, and judicially efficient thing to do is for the Application to be denied without prejudice at this time and afford Applicant the opportunity to cure the existing conflict with county ordinances and refile its Application.”