Pipeline opponents are poised for Summit permit challenges

State Rep. Charley Thomson, R-Charles City, speaks against a permit for Summit Carbon Solutions at a gathering July 10, 2024 in Coon Rapids. (Photo by Jared Strong/Iowa Capital Dispatch)

Several groups that oppose a recently approved carbon dioxide pipeline network in Iowa plan to launch challenges to that approval in the coming days that will likely be decided — months or more than a year from now — in court.

Summit Carbon Solutions wants to build a sprawling pipeline system in five states that would transport captured carbon dioxide from dozens of ethanol plants to North Dakota for underground storage. More than 1,000 miles of pipe would be laid in Iowa, of the overall 2,500 miles.

Last month the Iowa Utilities Commission — then known as the Iowa Utilities Board — said it would issue a permit for Summit’s initial proposal in Iowa with some conditions, including that no construction could begin until Summit has secured approval for the project in the Dakotas.

The deadline to ask the commission to reconsider that final order is Monday. That is the first step to challenge it.

Four groups have indicated to the Iowa Capital Dispatch that they will make reconsideration requests, and they represent a coalition of unlikely allies with sometimes fierce ideological differences on other topics. They plan to challenge aspects of the commission’s decision with arguments that are nuanced by their differing priorities.

“Our allies are our allies,” said state Rep. Charley Thomson, a Charles City attorney who is part of a group of Republican legislators who have challenged Summit’s permit application and supported legislation that would impede it. “I’m not going to pick a fight with the Sierra Club because we differ on some other issues. We are going to march together.”

The legislators, the Sierra Club of Iowa, a large group of affected landowners represented by attorney Brian Jorde, and seven counties affected by the project have indicated they will seek reconsiderations. The counties were the first to file a request, on Friday.

A primary argument that the groups plan to make is that Summit’s project should not be eligible for eminent domain, a government-sanctioned procedure by which Summit can force landowners to allow its pipeline to be built and operated on their properties.

Summit does not take outright ownership of the land but has a right to use it indefinitely as long as the pipeline is still operating. The company had sought eminent domain for about a quarter of its initial 688-mile route in Iowa.

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The IUC decided “the service to be provided by Summit Carbon will promote the public convenience and necessity,” which is required to obtain a pipeline permit and the power of eminent domain.

Thomson said the commission’s 507-page order was “disturbingly weighted to find what they set out to find.”

“It comes across as a justification for a decision that was made prior to any of the hearings,” he said this week at a meeting hosted by the Free Soil Foundation in Coon Rapids. “It was, in effect, grabbing evidence that would support them and ignoring evidence that would not.”

Opponents of the project have long griped that the outcome was predetermined because of the political influence of those who would benefit from it. That suspicion was bolstered last year when Gov. Kim Reynolds appointed a new chairperson to the three-person commission, the former chairperson abruptly resigned, and Summit’s permit process was accelerated .

The company had hoped to start construction in 2024, but setbacks in the Dakotas have delayed its plans.

Commission’s findings

The IUC is charged with determining whether to issue a permit for a carbon dioxide pipeline and is the primary arbiter of its route.

It used what it described as a “balancing test” of factors to determine whether Summit’s system would benefit the public. The commission said most of the factors it selected favor a permit for Summit.

Those included: the project’s eligibility for federal tax credits; the potential for ethanol plants to sell their fuels in low-carbon fuel markets; potential effects on climate change; overall benefits to ethanol producers; benefits for the state’s economy; and the superiority of pipelines over other transportation methods.

Commissioners said two further factors — the impact to landowners and safety — weigh against granting a permit. However, the commission said Summit’s proposed safety precautions and the conditions the commission placed on the permit alleviated the negative weight of safety concerns.

“We think it just benefits the pipeline company and the ethanol industry, and it really doesn’t address climate change to the extent necessary to get approval,” said Wally Taylor, a Sierra Club attorney.

He doubts the IUC will change its mind about the permit approval and that the Sierra Club — and others — will file lawsuits in district court.

The commission must respond to the requests to reconsider its decision within 30 days.

Jorde, the landowners’ attorney, declined to immediately reveal what arguments he will make against the commission’s decision: “I can’t discuss strategy or what are the most egregious of the many errors. We are evaluating them all and will pick the ones we think the district court will find most compelling.”

The counties also disagree that the project has enough benefit to the public to merit a permit and argue Summit has failed to attempt to conform its route to local regulations and future development plans, said Tim Whipple, an attorney for the counties.

“The counties have made arguments to the utilities board that the company should be required to comply with local zoning ordinances, particularly setbacks,” he said.

Several counties that adopted ordinances to keep Summit’s pipeline farther away from cities, houses and other places have been sued by the company. A federal judge sided with Summit, but two appeals of the judge’s decisions are pending and might not be resolved until sometime next year.

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