Minnehaha County authorizes filing for party status in SCS Carbon Transport pipeline case

The Minnehaha County Commission on Jan. 28 authorized the chair to sign an application for party status (HP 24,001) in the South Dakota Public Utilities Commission proceeding over SCS Carbon Transport LLC's proposed carbon dioxide transmission pipeline. The measure passed on a voice/roll-call vote after commissioners and staff described a rapidly evolving preemption question from the PUC staff and pipeline proponents.

The vote comes after county attorneys received communication from PUC staff and outside counsel indicating the pipeline company might ask the PUC to preempt the county's ordinance that governs pipeline routing and setbacks. Eric Boger, the county's chief civil attorney, told commissioners the county's intent is to seek party status only to defend the county's ordinance against preemption, not to litigate unrelated aspects of the pipeline proceeding.

“Given the indications from PUC staff, it is our advice now to seek party status at this time,” Boger said, adding that the county would seek intervention only “to the extent of resisting that attempt to supersede or preempt our ordinance and ask them to follow that ordinance as previously adopted by this body.”

Commissioners who spoke during the discussion said the county’s locally adopted ordinance reflects the county’s legislative will on routing and setbacks and that seeking party status is needed to protect that local law. Commissioners also noted the action carries financial risk: one speaker said prior outside-counsel defense costs had amounted to tens of thousands of dollars beyond insurance coverage.

Boger said the county will notify its insurer and that the insurer’s claims associate would determine coverage and whether to assign outside counsel. He recommended retaining the same outside firm used in a prior pipeline matter so the county would not “recreate the wheel.” He said the PUC was meeting the same day but that any action on the county’s application was likely to occur at the commission’s next meeting.

The motion to authorize filing the application was made and seconded; the board then voted in favor. A roll call in the record shows the commissioners present voting aye; the chair announced that the motion carries.

The county’s written application will be transmitted to the PUC, and the commission directed staff and counsel to proceed with notifying the county’s carrier and coordinating next steps on legal representation as needed.

Votes and next steps: staff said they will file the party-status application and notify the county’s insurer; outside counsel assignment will follow the insurer’s determination. The PUC’s timeline for acting on the county’s application was uncertain, but Boger said the county anticipates the PUC will address such applications at its next regular meeting.

Context: Several other counties along the proposed route have filed or planned to file for party status; the legislature is concurrently considering bills affecting eminent-domain authority for carbon-capture pipelines. The commission’s action is limited to seeking party status in the PUC proceeding and does not itself change county ordinances or routing rules.

Looking ahead: County attorneys and staff said they will update the board after filing and when the PUC posts any action on the application.