PUC asked to pre-empt counties on pipeline regs - KELOLAND.com

PUC asked to pre-empt counties on pipeline regs

PIERRE, S.D. (KELO) — A lawyer representing the Navigator Heartland Greenway carbon-dioxide project wants the South Dakota Public Utilities Commission to overrule pipeline ordinances recently passed by several county commissions along the proposed route.

The motion from attorney James Moore says the ordinances in Minnehaha and Moody counties are “unreasonably restrictive.” He wants the state commission to address those two ordinances, plus another pending in Lincoln County, during the state commission’s permit hearing starting July 25.

State commissioners Kristie Fiegen, Chris Nelson and Gary Hanson discussed the county-ordinance question Tuesday but took no action. A further complication is that Moody County has party status in the Navigator docket but hasn’t pre-filed any testimony, while Minnehaha County isn’t a party.

Commissioner Nelson originally said Tuesday that he favored reaching a decision on county ordinances as part of the Navigator docket, but that should come only after the permit decision. Moore said Nelson’s approach would create “a parade of horribles” because there’s no state law specifically providing for that.

Nelson then asked whether Navigator would object to re-opening the docket to allow pre-filed testimony from the counties’ witnesses at this late date. Moore said that would be preferable.

Ellie Bailey, an attorney representing the South Dakota Rural Electric Association and the South Dakota Association of Rural Water Systems, said she objected to the state commission reaching any decision regarding county ordinances Tuesday because that specific question wasn’t publicly noticed. Bailey however agreed the matter was “important, very significant.”

Ryan Cwach, one of the attorneys representing dozens of landowners opposed to the Navigator project, agreed that the state commission shouldn’t reach an immediate decision on pre-empting county ordinances but said it would be “inappropriate” to it into the permit hearing.

“I really think this is going to hurt the hearing and hurt the bigger overall question of the permit,” Cwach said. He noted that the hearing, which is set to end no later than August 5, already was on a rushed schedule. He wants the ordinance decision to come afterward. “There are probably a lot of facts and issues that could be discovered,” Cwach said.

Kristin Edwards, a lawyer for the state commission’s staff, said the Tuesday discussion about ordinances would make counties and others involved in the docket aware. Edwards said the commission’s staff have been trying to determine how to suggest the county-ordinance question should be handled. “What we’re running into, is there a way to go forward without addressing this issue?” She noted that another county could pass an ordinance on the eve of the permit hearing.

The discussion came just days after a rally in the state Capitol rotunda by landowners opposed to carbon-dioxide pipelines using eminent domain to cross their property. The event was attended by several dozen current and former legislators who support the landowners. Most of the comments that day were directed at another applicant, Summit Carbon Solutions, that also has an application pending with the state commission.

Fiegen, the commission’s chair, said Tuesday that she wants to make sure counties have a voice in the Navigator docket. Commissioner Hanson said he has “such a huge problem” with the commission deciding to override county ordinances. “To just pre-empt on the front end, that’s contrary, inherently wrong,” Hanson said.

Nelson said he didn’t have an answer. “Unfortunately though, I don’t know how to resolve this before the hearing.”