Court battle over approval for Summit pipeline looms

State regulators have effectively rejected several requests to review their permit for a massive carbon dioxide pipeline project.

The Iowa Utilities Commission had until Wednesday under law to respond to appeals filed a month ago by conservation groups, landowners, counties and lawmakers opposing a pipeline permit for Summit Carbon Solutions.

“Because the Commission did not act by August 14, 2024, the requests for reconsideration were denied as a matter of law,” Jon Tack, a lawyer for the Commission, wrote in a denial notice.

This means that for three years the commission has primarily overseen disputes over Summit's approval, and the next arbitrator will likely be a judge.

Several groups have announced they will challenge the approval in the state's district court.

“The whole process was very unfair and the way the board conducted the negotiations – everything was skewed in favor of Summit,” said Wally Taylor, an attorney for the Sierra Club of Iowa. “They are entitled to a fair hearing and a fair decision maker, and we did not get that.”

Those whose request for reconsideration was denied have 30 days to file a lawsuit challenging the commission's June decision to approve the first phase of the Summit project in Iowa.

The company plans to build a 4 km long pipeline network to transport captured carbon dioxide from nearly 60 ethanol plants to North Dakota and store it underground.

The first Iowa permit covers about 680 miles of pipeline. Summit is seeking to expand its Iowa pipeline by about 370 miles with a series of additional permit applications. Most of these applications were the result of agreements Summit signed with ethanol plants that had previously committed to the now-defunct Navigator CO2 pipeline.

Taylor confirmed Thursday that the Sierra Club will take the commission to court over the Summit permit. Two other likely litigants – the Republican Legislative Intervenors for Justice and Brian Jorde, the lead attorney for landowners opposing the project – could not immediately be reached for comment for this article.

Tim Whipple, an attorney representing seven counties opposed to the permit, said those counties have not yet decided whether to file suit. Bold Iowa has not yet decided either, said its director, Ed Fallon.

“They are now disappointed because the commission refused to even explain why it would not reconsider its decision,” Whipple said of the districts.

The reasons for opposing the permit vary among groups. The counties, for example, are demanding more powers to protect their citizens from potential pipeline breaks and to ensure future economic development.

A common theme, however, is the right of expropriation, which Summit can use to force unwilling landowners to build the pipeline network on their properties. The groups argue that the project does not have a public benefit sufficient to trump property rights, but rather that the purpose of the project is to enrich those who have invested in the company.

The approximately $8 billion project, if built, would benefit from government tax incentives for carbon capture and low-carbon fuel production.

Summit argues that its system is essential to the ethanol industry, which faces an uncertain future as electric vehicles become more common. Gasoline-powered passenger vehicles in the United States run almost exclusively on ethanol blends.

Summit still needs to obtain approval from the states of North and South Dakota, which are important for its project.

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