Nancy Dugan lives in Altoona, Iowa and has worked as an online editor for the past twelve years.
A Polk County District Court has dismissed a legal challenge to a water permit linked to Summit Carbon Solutions’ proposed CO2 pipeline. But the attorney for the petitioners indicated this won’t be the last attempt to derail the permits Summit-linked LLCs will need for carbon capture facilities.
As Bleeding Heartland previously reported, the suit filed by Kimberly Junker, Candice Brandau Larson, and Kathy Carter sought to review the decision by the Iowa Department of Natural Resources (DNR) to issue “a water withdrawal permit pursuant to Iowa Code § 455B.265.”
“Upon review of the Motion and the court file, the court finds and concludes that the Motion is supported by good cause and should be granted for the reasons stated in the Motion,” District Court Judge Jeanie Vaudt wrote in her brief November 7 order.
The suit, filed on October 18 by Cedar Rapids attorney Wally Taylor on behalf of the three women, sought review of a water withdrawal permit issued to Lawler SCS Capture, LLC, a Delaware business affiliated with Summit Carbon Solutions, LLC, which is proposing to build a CO2 pipeline in Iowa and several adjoining states. This spring, Lawler SCS applied for and subsequently received a permit from the DNR to withdraw 55.9 million gallons of water per year from the Devonian aquifer “at a maximum rate of 100 gallons per minute throughout each year for carbon capture-related purposes on said land.”
The DNR filed the motion to dismiss the suit on October 26. Submitted by Attorney General Brenna Bird and Assistant Attorneys General David Steward, Jacob Larson, and Eric Dirth, the motion alleged the suit should be dismissed for “failure to state a claim upon which any relief may be granted.”
The DNR argued that the three women “failed to exhaust their administrative remedies,” claiming the women were “required to initiate a contested case proceeding of the water use permit before bringing a petition for judicial review” within 30 days of the issuance of the permit on May 29.
Petitioners had until Wednesday, June 28, 2023, to administratively challenge the Lawler SCS water use permit by initiating a contested case proceeding before the EPC. See Iowa Code § 455B.278(2), 567 IAC 50.9. Petitioners failed to do so, and thereby failed to exhaust the administrative remedies available to them.
On November 1, Taylor filed a resistance to the motion to dismiss and a request for oral argument. Taylor argued the women had already exhausted their administrative remedies, because an adequate administrative remedy did not exist. Further, Taylor contended the petitioners were not statutorily required to exhaust the administrative remedy. The resistance was largely based on the fact that none of the petitioners live in Chickasaw County and therefore did not have access to the lone, miniscule notice published in the New Hampton Tribune on May 4 of this year, the same month the permit was granted.
So the notice of the recommendation to issue a permit, the only way an affected person would know about the proposed permit, is published in a local newspaper in the locality of the proposed water source. In this case, as shown by the exhibit to IDNR’s Motion to Dismiss, the notice was published in the New Hampton Tribune, a local paper in Chickasaw County. As shown by the affidavits of the Petitioners, attached hereto, they do not reside in Chickasaw County and would not be expected to read the New Hampton Tribune. And IDNR would surely know that the Devonian aquifer extends outside of Chickasaw County and the notice as required by § 50.7(3) should be published in a broader area than that served by the New Hampton Tribune.
In support of that motion, affidavits from Junker, Brandau Larson, and Carter all confirmed that they did not learn the DNR had issued the Lawler SCS permit until August or September, months after the fact. Additionally, all three women confirmed that the New Hampton Tribune is not generally distributed in the counties in which they reside.
The DNR’s November 3 reply to the resistance argued that the petitioners’ affidavits fall outside the pleadings.
The attachment of affidavits from each of the Petitioners to the resistance brief are outside the bounds of consideration on a motion to dismiss. Each affidavit contains self-serving testimony articulating reasons why each Petitioner failed to exhaust the administrative remedies available to them.
The DNR further argued that “no legal exception excuses Petitioners from exhausting their administrative remedies before seeking judicial review.”
In the November 3 reply, the DNR acknowledged the Petitioners’ standing, stating the following:
Petitioners’ Petition demonstrates they have standing to challenge the water use permit issued to Lawler SCS because they are adversely affected and aggrieved by the action. Petitioners, however, did not administratively appeal the water use permit as explicitly required by both statute and rule.
Nonetheless, according to Taylor, who also serves as legal chair of the Sierra Club’s Iowa chapter, his clients have chosen to move on. “I have told Kim and Kathy and Candice. We have decided to not pursue the Lawler issue any further and concentrate on the other twelve permits Summit needs, where we won’t be taken off guard this time.”
Taylor added, “We may have lost the first battle, but we can still win the war.”