Summit attorney expects pipeline hearing to last six weeks

The evidentiary hearing started Tuesday in Fort Dodge

By: - August 22, 2023 6:00 pm

Erik Helland, chairperson of the Iowa Utilities Board, pounds a gavel to start the evidentiary hearing for Summit Carbon Solutions. (Photo by Jared Strong/Iowa Capital Dispatch)

FORT DODGE — A hearing that started Tuesday to determine whether Summit Carbon Solutions should get a permit to build a sprawling carbon dioxide pipeline in Iowa will last about six weeks, according to the company’s lead attorney.

That is significantly shorter than what was envisioned by the Iowa Utilities Board staff early this year. In February — while the board was contemplating an October start to Summit’s evidentiary hearing — a proposed schedule tentatively predicted that the hearing would last more than two months and perhaps end sometime in January 2024.

At the time, board members acknowledged that it could go longer.

The length of the hearing is largely dependent on how long it takes to consider the company’s requests for eminent domain.

There are about 950 parcels subject to Summit’s requests, and company attorney Bret Dublinske sought Tuesday to limit questioning of eminent domain witnesses.

Bret Dublinske is the lead attorney for Summit Carbon Solutions. (Photo by Jared Strong/Iowa Capital Dispatch)

“If we go around and around and around, we’ll never conclude,” he said.

The IUB has not provided an anticipated timeline of the hearing nor an estimated completion date. Summit has not publicly speculated.

“Our project is a major investment in Iowa’s infrastructure and as a result there are a number of stakeholders who will be involved in the hearing that starts this week, including our 14 ethanol plant partners, landowner supporters and more,” said Sabrina Zenor, a spokesperson for the company. “We look forward to those partners and others participating in the hearing as it progresses in the weeks and months to come.”

But Dublinske, in an automatic email reply on Tuesday, was more specific: “I am out of the office in a hearing that is expected to run for six weeks, to roughly the end of September.”

Dublinske did not respond to a follow-up question about whether the source of the six-week estimate was the IUB. The board has defended its decision to start the hearing on Tuesday — about two months before it previously indicated the hearing might begin — in part because it will give farmers an opportunity to participate before harvest, which peaks in October.

The company has sought a decision on its permit by the end of the year. It has derided requests to move the evidentiary hearing to next year as merely a stalling tactic meant to kill the project through delays.

But pipeline opponents and a growing group of state lawmakers worry that the permit process has been accelerated at the behest of the company and the detriment of landowners.

One of the board members was publicly skeptical early this year of starting the hearing in October because it seemed too early.

Josh Byrnes is one of three members of the Iowa Utilities Board. (Photo by Jared Strong/Iowa Capital Dispatch)

“Iowans deserve a thorough and transparent review of this project, with robust analysis from all of the parties and the board,” board member Josh Byrnes wrote in opposition to the proposed schedule at the time. “I am concerned this proposed schedule does not allow for that.”

But Byrnes’ opinion shifted after Gov. Kim Reynolds appointed a new person to lead the board in April and its former chairperson resigned.

Reynolds has denied that her appointment of new chairperson Erik Helland was part of an effort to speed up Summit’s permit process.

The hearing begins

Helland banged a gavel at 10 a.m. to start Summit’s hearing on Tuesday in Fort Dodge.

He gave a general overview of the project and some basic information about how to participate and spectate: Those who are participating in the hearing — known as intervenors — can tilt their name placards on their sides if they want to speak. Also, the bathrooms are in the back.

More than 150 people came to watch, and most wore red — a color that pipeline opponents have used to signify their unified opposition.

“It is very much like a trial being held by a judge in district court, although there is no jury,” Helland said, describing how the hearing would flow.

The board then ruled on two pending motions that sought to delay the start of the hearing. Both were denied.

Wally Taylor is an attorney for the Sierra Club of Iowa. (Photo by Jared Strong/Iowa Capital Dispatch)

One motion by the Sierra Club of Iowa said the hearing should be paused because of a recent decision in North Dakota in which state regulators denied a route permit for Summit.

The company has since modified its proposed route and has asked the North Dakota Public Service Commission to reconsider. That state is the destination of captured carbon dioxide from ethanol plants that would connect to Summit’s pipeline system.

Helland said North Dakota’s process doesn’t affect Iowa’s.

The other request to pause the evidentiary hearing pertained to a pending court challenge by landowner George Cummins, who argues that the IUB doesn’t have jurisdiction over Summit’s project.

Cummins asserts that because the carbon dioxide will be transported in a “supercritical fluid” state, it is not a liquid is not regulated by Iowa’s hazardous liquid pipeline permit process.

The IUB rejected the argument, but Cummins appealed to district court, where it is pending.

Helland said that appeal is likely to fail, and the board rejected his motion to stay the proceedings.

He said it is important to hold the hearing early enough to avoid harvest and noted that Summit has already spent several hundred thousand dollars preparing for the hearing.

The first three witnesses

The hearing began in earnest with afternoon testimony from three farmers whose land is affected by Summit’s project, which would span more than 680 miles in Iowa.

Summit wants to use eminent domain to gain land easements for the ten parcels that were considered Tuesday afternoon. There are a total of about 950 parcels that will be considered during the hearing.

Typically, those discussions occur toward the end of the hearing, after a company has made its case for a project. For this hearing, part of the eminent domain requests were moved to the start.

As of Tuesday, there were a total of 44 people who will testify about their land, said Melissa Myers, an IUB spokesperson.

The amount of time each person testifies depends on how many of their parcels are affected, what special considerations their land might have, and on their verbosity.

Jessica Marson, of Floyd County, answered questions about one land parcel, and her testimony went on for about an hour. She attended remotely via an online video conference.

Marcia Langner was among the first to testify at Summit’s evidentiary hearing. (Photo by Jared Strong/Iowa Capital Dispatch)

Marcia Langner, of Clay County, had seven parcels. Her in-person testimony took more than 90 minutes.

The last witness, Nelva Huitink of Sioux County, had two parcels that were discussed for about an hour.

They shared concerns about damage to land, damage to their underground drain tiling, and threats to the safety of their livestock and themselves.

Langner, when asked how she would cope with a pipeline leak that killed her cattle, said: “I hate to even think about it. It would be devastating.”

A pipeline break could produce a dense plume of carbon dioxide gas that, under certain circumstances, can travel long distances and threaten to asphyxiate people and livestock. A request for Summit to reveal its safety models that attempt to predict where those plumes might go is pending with the board.

“There’s a lot of risk and a lot of ambiguity,” Marson said. “We are concerned about our safety. We are concerned about our community.”

As planned, the testimony of all three completed Monday, but there was some early disagreement about how much latitude the intervenors have for their questions.

Dublinske sought to limit the so-called “friendly” cross examination of witnesses and to disallow new follow-up inquiries by intervenors after they have had their time to question a witness.

He had a protracted dispute with Brian Jorde, an Omaha attorney who is representing dozens of landowners, over whether Jorde could ask a follow-up question that didn’t fit with standard board protocol.

Jorde noted the lack of precedent for considering eminent domain requests at the start of the hearing and the lack of a schedule for witnesses who must travel long distances to testify, including those who live outside of Iowa: “We’re way beyond the way it always happens,” Jorde said.

The exchange went on for about 10 minutes until Dublinske stopped objecting to the question, and Jorde’s inquiry was finished shortly thereafter.

The hearing ended at about 5 p.m. Tuesday and will resume about 8:30 a.m. Wednesday. There are 10 witnesses scheduled to speak that day, and the testimony is expected to continue until all have finished.

For the foreseeable future, the hearing will resume on Tuesdays, Wednesdays and Thursdays. The Cardiff Event Center, where the hearing is being held, hosts weekend events.

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Jared Strong
Jared Strong

Senior reporter Jared Strong has written about Iowans and the important issues that affect them for more than 15 years, previously for the Carroll Times Herald and the Des Moines Register.