Four groups challenge Summit carbon pipeline permit in court

State regulators erred in numerous ways when they approved a permit for what might be the first carbon dioxide pipeline system in Iowa, four groups argue in new lawsuits.

Those suits represent a new chapter for the challenges to Summit Carbon Solutions' five-state pipeline network. The arguments are the same that have been raised for months and years, but one or more District Court judges will be their new arbiters — rather than the Iowa Utilities Commission.

"It is clear that the commission was not a fair and unbiased tribunal, and Sierra Club and other Summit opponents were denied due process," wrote Wally Taylor, an attorney for the Sierra Club of Iowa.

The Sierra Club is contesting the commission's approval of an initial 690-mile portion of Summit's project in Iowa. Joining it with lawsuits of their own are a group of more than 150 landowners who are subject to eminent domain for the project, nine counties along the route and a group of Republican lawmakers and people associated with them.

A spokesman for the commission declined to comment on the pending litigation.

Opponents of Summit's project have argued that the outcome of its permit request was fixed by behind-the-scenes political scheming. They have provided no solid proof of that allegation, but point to Gov. Kim Reynolds' appointment of a new chair to the commission last year, midstream through perhaps the most complicated permit process the commission has undertaken.

The previous chair — who held the post since 2015 — resigned from the panel entirely less than a week after the announcement, even though her term didn't expire until 2027. Under the new leader of the commission, the permit process accelerated.

The groups challenging the commission's decision have sometimes differing political ideologies, but they have coalesced around one issue: eminent domain.

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The commission decided that Summit is eligible to force landowners to host its project — with compensation — because the company qualifies as a "common carrier" of goods and the project is a public use with benefits to the public.

Summit plans to install equipment at nearly 60 ethanol producers in five states to capture carbon dioxide from their fermentation processes — which would otherwise be emitted into the air — and transport it to North Dakota for underground storage. The lawsuits argue that Summit will own the carbon dioxide it transports.

"It will be carrying its own product, not carrying a product for hire," the Sierra Club argued.

The South Dakota Supreme Court recently cast doubt on whether Summit qualifies as a common carrier.

The large group of landowners represented by Omaha, Neb., attorney Brian Jorde said the project is "a private joint venture relationship between Summit and its ethanol plant partners" that does not qualify as a public use.

The counties — Dickinson, Emmet, Floyd, Franklin, Hardin, Kossuth, Shelby, Woodbury and Wright — called it an economic development project.

"The power of eminent domain can only be exercised for a public, as opposed to a private, use," the counties argued.

Summit seeks the forced acquisitions of land easements for the project through eminent domain for about a quarter of its initial proposal. At a recent meeting with landowners in Northeast Iowa, a company representative said it had spent more than $150 million obtaining voluntary easements in Iowa. More permit requests might allow Summit to expand its project by about 50 percent in the state.

After the first lawsuit was filed last week, Summit said it was confident in the permit process and reiterated its project would benefit ethanol producers and farmers. It would enable ethanol plants to sell their fuels into low-carbon markets and would buttress the ethanol industry as more people buy electric vehicles. Higher corn prices might result.

Gasoline blended with ethanol is far and away the most-sold fuel for passenger vehicles, and more than half of Iowa's corn is used to make ethanol.

The lawsuits also raise concerns about damage to farmland, safety risks from a pipeline breach, due process, county zoning authority and others. It's unclear when they might conclude.

The groups filed the lawsuits in state District Court, and the Republican Legislative Intervenors for Justice also sued in federal court.

Comments: (319) 368-8541; jared.strong@thegazette.com