The hearing for a contentious carbon pipeline will take place in September, four months after the date requested by the company developing it.
At a meeting Thursday, the state Public Utilities Commission rejected Summit Carbon Solutions’ April-May timeline, despite the company’s assertion the move was illegal and would derail the project’s timeline.
The company repeatedly argued for a spring hearing and June decision, allowing it to split work between 2023 and 2024. A delayed date, it argued, would mean a “2024 shotgun construction start.”
“We’ve given more time than anyone’s ever had on a docket like this,” said Bret Koeneke, a Pierre lawyer representing the company.
But counsel for landowners challenging the pipeline have called for “an intelligent and thoughtful time frame of at least [February 2024]. Omaha lawyer Brian Jorde described Summit's application as “rushed.”
“They haven’t notified people, they’re procedurally defective in their application,” Jorde told commissioners.
PUC lawyer Karen Cremer told commissioners in a closed Thursday meeting, “the parties agreed in principle” on a plan to hold the hearing September 11-22.
But Koeneke said the company “most certainly did not” agree to the September timeline. He noted the plan lacked a date when the permit would be issued, something he said is “very integral to construction and financing planning.”
“We can not and would not agree to a schedule that does not have a date with an issuance of permit,” he said.
PUC accused of breaking law
The parties also disagreed about how to interpret the law governing the pipeline application process.
Koneke argued the law requires the PUC to accept the company's preferred timeline. In a filing, he wrote the commission “destroyed the intention of the statute” when it extended the deadline indefinitely in June 2022.
“Statute gives the applicant the ability to extend the deadline, and nobody else,” he reiterated in the Thursday meeting.
Bill Van Kamp, a lawyer for ethanol companies supporting the project, similarly argued the PUC broke the law by extending the deadline.
“The legislature sets the terms in which this commission must act,” he said, arguing the “plain language of the code” supported his stance.
Both Cremer and Commissioner Gary Hanson disputed that interpretation. Hanson said when the legislature drafted the law, they wrote any party could request an extension to the deadline. Legislators, he said, gave the commission the power to deny applications with unrealistic timeframes.
“The challenge that we’re in right now was anticipated,” he said. “If, in fact, the PUC needed more time and the applicant was intransigent, then the PUC would simply have to deny the application.”
Hansen noted he was reluctant to deny Summit’s application outright, but that commissioners “have a responsibility to protect the citizens of South Dakota.”
Commission rejects compromise date
After a recess, Koeneke offered an Aug. 31 decision date. But Commissioner Chris Nelson moved to adopt the September timeline, reaffirming the commission’s authority to make the decision. The legislative record, he said, did not speak to a pipeline applicant’s ability to impose a deadline on the commission.
Nelson argued other PUC dockets, ongoing litigation in affected counties and the size of the project made the September deadline necessary.
“We have to consider all of the circumstances involved,” Nelson said. “Even this week, Summit is sending notifications to 50 more people for the first time. You take all of that into account, and I don’t see how we can do anything other than adopt these September dates.”
Nelson said he will “push [to] get a deadline” for the ultimate decision on the pipeline.
