Court to decide if proposed Summit permit change affects pipeline opponents’ lawsuit

Attorneys for Summit Carbon Solutions argued Friday in Polk County District Court that the company’s proposed amendment to its permit for a carbon sequestration pipeline through Iowa should be decided on before a legal case against the permit can move forward.

The Iowa Utilities Commission approved a permit in June 2024 for Summit Carbon Solutions to build more than 600 miles of a carbon sequestration pipeline in Iowa, with the condition that the company gain permits in the Dakotas before beginning construction.

The Sierra Club Iowa Chapter, along with several counties and individual landowners, then filed a lawsuit in fall 2024, seeking to overturn the IUC’s permit approval. The lawsuit alleged the proceedings were unfair and that Summit did not meet the definition of a common carrier.

Summit filed a petition with the IUC on Sept. 15 to amend its approved permit. The amendment would remove the condition that required approval in the Dakotas and add several route and pipe-size modifications to the permit. This action followed Summit’s second permit denial in South Dakota and the enactment of a law barring the use of eminent domain for carbon pipelines in the state.

Summit also requested the court remand the Sierra Club and landowners’ case to the IUC and stay any future actions on the case until the IUC decided on the filed amendment petition. This was the issue before Polk County District Court Judge Scott Beattie Friday morning.

Summit’s attorney, Bret Dublinske of Fredrickson & Byron in Des Moines, argued the IUC needed to rule on the amendment petition before the case against the permit could proceed.

He argued the facts in the case would be outdated once the IUC ruled on the amendment and the courts would be presented with either duplicative litigation or a scenario in which the ruling did not match the most recent version of the permit.

“It makes little sense to proceed to litigate over outdated facts that are in the process of being amended, and would be contrary to judicial economy to split the Summit 1.0 case in such a way that it may be litigated twice — once for the original permit and once for the decision on the Petition to Amend that permit,” Summit wrote in its request to remand the case.

Wally Taylor, on behalf of the Sierra Club Iowa Chapter, argued Summit did not supply sufficient information as to how the amendment would change the nature of the lawsuit against the IUC’s decision.

“The proposed amendment does not impact any of the issues in this decision,” Taylor argued. “ … It does not change the lack of public convenience and necessity, the issue of eminent domain, the damage to farmland … none of the petitioners have raised issues about the route or even impact of the condition on the South Dakota permit.”

Taylor asked the court to deny the motion to remand the case to the IUC.

Brian Jorde with Domina Law Group, based in Nebraska, represented landowners in the case and took a similar stance to Taylor, arguing it would make more sense for the case to continue without regard to Summit’s amendment with the IUC, so that the Iowa Supreme Court can give guidance on the carbon pipeline issue.

Jorde said the landowners and affected parties in the case “don’t need to go through eight more weeks of hearings” in the multiyear case for the same “mistakes” to be made by the IUC on the amendment.

“We need guidance from the Supreme Court; frankly, the IUC needs guidance from the Supreme Court,” Jorde said. “Is a carbon dioxide pipeline that you know has no drop off points in the state of Iowa, does that promote public convenience and necessity? We need the Supreme Court to tell us, or we’re just going to have 15, potentially, other dockets fighting that same issue.”

Michelle Rabe, on behalf of the Iowa Utilities Commission, said while the IUC believes Summit’s request for remand is, “slightly outside” of how a remand is typically used, she believes there are three options forward, “none of which are ideal.”

Rabe said Beattie could deny the remand and allow the case to continue, in which case it would advance through the courts until eventually the Supreme Court issues what she said could be a “moot order” at that point because the permit might have changed via the IUC proceedings.

The second option she presented was for the court to grant the remand and allow the IUC to rule on the amendment, in which case she predicted the parties would appeal the IUC’s decision and then the courts would be presented with potentially “parallel” cases.

The third option, she said, would be for the court to stay the decision and allow the IUC proceedings to play out, so that when that decision is appealed, the two cases can be consolidated.

“I don’t think there’s a clean way to do it at this point,” Rabe said. “I think what Summit is asking … on the amendment, may not directly affect the bigger issues in the case. I think potentially it could, but we don’t know.”

Summit to change routes?

Summit’s amendment petition with the IUC, per Dublinske and the filing, does not seek to do away with the IUC’s protections against a “pipeline to nowhere.” Instead of listing North Dakota as the ending point, Summit asks the permit be changed to instead condition pipeline construction to the company’s securement of “access to one or more sequestration sites and permits or agreements to allow it to reach such storage.”

Dublinske said the changes that occurred in South Dakota since the permit was issued, along with carbon sequestration site potential in Wyoming, Nebraska, Colorado and Kansas, are “fundamentally the reasons” the company submitted the amendment and requested the remand in the case.

Opponents suggested the amendment means that Summit plans to change its original route, which would have ended in North Dakota where the CO2 could be pumped into an underground rock formation.

A spokesperson for Summit said Friday the amendment “keeps open the option to transport CO2 west through Nebraska or north through South Dakota.”

“Our focus is on supporting as many ethanol partners as possible and building a strong foundation that helps farmers, ethanol plants, and rural communities access the markets they’ll depend on for decades to come,” the spokesperson said.

Beattie said he will work to issue an order as soon as possible, though he suspected it would be a “couple of weeks” before he able to issue a written order.

This article was first published by Iowa Capital Dispatch.