New Lincoln County CO2 pipeline setback ordinance may fall into the 'safety' trap

Lincoln County landowners, bolstered by a series of recent defeats suffered by two major carbon capture companies with plans to build carbon dioxide pipelines in the region, are using the momentum to stage a fresh attempt to keep said transmission lines out of the county.

About 60 landowners convened at the Lincoln County Courthouse Friday morning to submit a request for a new pipeline setback ordinance to the county's planning and zoning board.

Rep. Karla Lems, a property owner from Canton whose legislative district covers Lincoln, Turner and Union counties, told Argus Leader on Friday a new ordinance written for and included in the request would implement setbacks — buffer zones in which pipelines could not be built — of 1,855 feet from any residence, school, business, healthcare facility and other structures.

"We got that number from Navigator [Heartland Greenway's] own findings that that is the setback that they had said would be a reasonable setback from a six to eight inch pipe," Lems said.

Navigator and Summit Carbon Solutions, both out-of-state carbon capture companies, originally planned to route hazardous liquid pipelines through portions of Lincoln County before the South Dakota Public Utilities Commission denied their permit applications in September.

More: Navigator pausing pipeline operations in South Dakota

While it is unknown whether Navigator intends to refile for a permit to build its Heartland Greenway Project, Sabrina Zenor, Summit Carbon's director of community relations, told Argus Leader on Sept. 15 the company remains "committed to getting a permit from the South Dakota PUC."

The submitted ordinance also includes stipulations in which carbon dioxide pipelines would not be able to be sited on "sites of historical or archaeological significance, or farms designated as Century Farms by the State of South Dakota Department of Agriculture and Natural Resources, and therefore may not be built upon without the explicit written consent of the landowner."

Lems said the ordinance was composed by "several landowners" and reviewed by a few lawyers before it was submitted.

This is the second citizen-initiated pipeline ordinance to be submitted to the Lincoln County Planning and Zoning Board since Summit Carbon and Navigator filed their permit applications last year. The first failed to pass the Lincoln County Commission after failing to reach a majority vote in August.

Lems said the momentum in pushing the adoption of the ordinance is in the favor of the landowners and the counties after the PUC denied Summit Carbon and Navigator's permit applications. She credited the denial to Minnehaha and Moody County's intervention in the permit hearings and said their presence not only made the difference in commission's decision but also gave credence to the authority of local counties.

Does this new ordinance fall into the 'safety' trap?

The new ordinance's primary purpose, according to its language, is to form new guidelines and standards governing "the secure and accountable installation, operation, and upkeep of carbon dioxide (CO2) pipelines within the boundaries of Lincoln County."

However, the submitted document also includes instances of the word "safety," which is a potential issue in terms of drafting county-level safety measures.

That's because the Pipeline and Hazardous Materials Safety Administration, or PHMSA, has federal authority over all aspects of pipeline safety.

A number of counties, such as Brown, Minnehaha and Spink, managed to pass county-level setback ordinances after Summit Carbon and Navigator first filed their permit applications by avoiding any usage of the word "safety" in their measures — though some county commissioners do take public safety into consideration when drafting ordinances, according to previous Argus Leader reporting.

Under the "Purpose and Intent" of the newly-filed ordinance, "safeguarding public safety" precedes "upholding property values" and "conserving the environment" as the primary designs of the measure.

More: How safe can carbon pipelines in South Dakota be? Inside the debate between Navigator, landowners

One section of the ordinance would also require the Lincoln County Planning and Zoning Board to review the if-adopted standards and provisions of the ordinance to "ensure they remain relevant given the ongoing advancements in safety practices," as well as "technology, and environmental awareness."

This is intentional, Michelle Jensen, a Lincoln County resident who helped write the ordinance, told Argus Leader on Friday. A long discussion was had about whether to include references to "safety," but it ultimately became a component of the ordinance because Jensen feels the overlap between PHMSA's "pipeline safety" purview and "public safety" is open to interpretation.

There have been instances where the inclusion of "safety" language in Midwestern county pipeline ordinances has backfired. Shelby County, a rural county in Iowa, was temporarily enjoined on July 10 from enforcing a setback ordinance it adopted at the request of Summit Carbon, whose Midwest Carbon Express pipeline, the company argued, was essentially blocked from entering the county due to the law.

"I was really frustrated, you know, before, when we tried to get [the previous ordinance] passed, it was coached into us by various people after that court case came out in Iowa that you referenced, don't use the word safety. You know, talk about your house, talk about your housing, about eligibilities, talk about your property values, all of that kind of stuff," Jensen said.

Look no further, Jensen explained, to the Navigator PUC hearing. She said "the entire thing was about safety."

The statute by which the PUC weighed Navigator's application included four standards a proposed project must meet. This includes complying with applicable laws and rules, not posing a threat of serious injury to the environment nor social and economic conditions of affected landowners, not substantially impairing the health, safety or welfare of the inhabitants, and not unduly interfere with future development by municipalities.

Therein, Jensen believes, lies a lot of room for interpretation when it comes to the overlap of "pipeline safety," "public safety," "safety practices" and the issue of state and federal preemption. Especially now that the PUC, in her view, sided with the landowners on the matter.

"So when you say the federal government and PHMSA will be the ones to regulate safety, I think that they are talking about, you know, the gauge of the steel that the pipe is made out of, the welds that make it be done, how far apart the shut off valves, that is 'safety,'" Jensen said.

Jensen further opined some of the more nuanced aspects of the CO2 pipelines, such as the plume models and the discussion around the Satartia incident — one of the world's first known instances of a mass poisoning from a carbon dioxide pipeline rupture occurred less than half a mile from the Mississippi town, leading 45 people to be hospitalized — serve as evidence that safety must be considered by officials.

"How can you look at Navigator's plume model, how far this could go, how can you look at things like Satartia and see the people that went to the hospital, whether they died or not ... and not use the word safety," Jensen said.

In Sept. 15 letters to Navigator, Summit Carbon and Wolf Carbon, PHMSA Associate Administrator for Pipeline Safety Alan Mayberry wrote counties and state governments have authority over pipeline siting and routing matters.

However, Mayberry also explained pipeline safety is specifically under PHMSA's federal jurisdiction.

"Nothing in the federal pipeline safety law impinges on these traditional prerogatives of local — or state —government, so long as officials do not attempt to regulate the field of pipeline safety preempted by federal law," Mayberry wrote.

This came after Chief Judge Stephanie Rose in the federal Southern District of Iowa found the ordinance included language that expressly addressed the safety risk inherent to carbon dioxide and sequestration pipelines.

Summit Carbon was not immediately available for comment for this article, but the company has previously told Argus Leader it recognizes the authority of state laws and county ordinances, "so long as officials do not attempt to regulate pipeline safety, which is preempted by federal law."

Dominik Dausch is the agriculture and environment reporter for the Argus Leader and editor of Farm Forum. Follow him on X and Facebook @DomDNP and send news tips to ddausch@gannett.com.

This article originally appeared on Sioux Falls Argus Leader: South Dakota landowners submit CO2 pipeline ordinance request