PIERRE, S.D. (KELO) — Attorneys from multiple sides of the fight over Navigator building a carbon-dioxide pipeline in South Dakota will face off at the state Capitol later this week for an argument that’s never come up before.

The South Dakota Public Utilities Commission is deciding whether to issue a permit to Navigator. A state law passed in 1981 lets the state commission supersede or pre-empt local land-use controls for some trans-state projects — but only when the requirements are “unreasonably restrictive.”

Navigator’s permit could turn on what the state commission decides regarding pipeline ordinances in Minnehaha County and Moody County. The same could be true for the CO2 pipeline that Summit Carbon Solutions wants to build. The county ordinances were passed after both companies applied to the state commission.

The commission has completed the main hearing on the Navigator project and plans to decide on the permit September 6. The commission will hold a special mini-hearing for Thursday, August 24, and if necessary the following day, to consider the pre-emption question.

What the state commission decides on pre-emption could decide whether the Navigator project moves ahead. That’s because company officials have already testified in the permit hearing that the project is a no-go if the Minnehaha and Moody ordinances are allowed to stand.

Minnehaha County and Moody County plan to present witnesses Thursday.

The state commission’s decision might not be the final word, however. Any of the sides could challenge the state commission’s ruling in court.

What the state commission decides regarding pre-emption could also affect the SCS project. The state hearing on the SCS application starts September 11. Attorneys for SCS on Monday asked the state commission to pre-empt pipeline ordinances in Minnehaha, Spink, Brown and McPherson counties.