Democrat Public Utilities Commission candidate Jeff Barth might have just disqualified himself from CO2 pipeline hearings at the onset of his race

The Democrat Convention this past weekend has provided interesting commentary from the new challenger for the office of Public Utilities Commissioner. The only problem is that the commentary communicates an absolute bias against a matter in front of the PUC coming from someone running to serve  on that panel. From this weekend –  Keloland 7/10/22

The PUC is considering a state permit for a proposed Summit Carbon Solutions pipeline that would collect carbon dioxide from various ethanol plants in the region and bury the gas in North Dakota.

“The CO2 pipeline, it’s, it’s really a terrible thing,” Barth said. He noted that when Dan Lederman, the South Dakota Republican chairman, first brought the proposal to the Minnehaha County Commission, Barth thought, “Oh okay, what is this?

“And the more I found about it, the more I turned against it. It can explode. It can kill you by asphyxiation. This is going to make a lot of money, for some people, but not that much for anybody in South Dakota. Certainly some of our ethanol plants are excited to have it. But they’ve been operating without this pipeline for thirty years.

Read that here.

And it isn’t just convention-fueled political hyperbole, he’s also put his objections in writing to the commission.

Claiming a pipeline is “a terrible thing” that can “explode” and “kill you by asphyxiation” would appear to be an insurmountable bias, which is particularly troubling for someone running to serve on a quasi-judicial body.  If you’re elected to be a fair and impartial judge on utility matters before the commission, how does that work when you are campaigning on being anything but impartial?

It doesn’t. And will automatically invite the state going to court going to court over it – and likely losing.

As explained six years ago in the Argus Leader (10/26/2016), PUC Commissioners are expected to act with much more impartiality:

(Chris) Nelson sees himself as an impartial judge of energy infrastructure projects and proposed energy rate hikes and a champion for extending broadband access to underserved rural populations.

Nelson has declined to take a position on future pipelines, power plants or wind energy projects and says doing so would taint his ability to act as a judge of the facts. Were he to show his hand before a hearing, Nelson said, he’d almost certainly be asked to recuse himself by a permit applicant.

State law expects impartiality from commissioners as they weigh electric rates and energy projects, Nelson said.

“People ask me ‘are you pro-pipeline or anti-pipeline?’ That question is irrelevant,” Nelson said. “We serve in a judicial capacity.”

Read that here.

And in fact, on this project, Commissioner Kristie Fiegen removed herself because the proposed pipelines would cross land owned by her sister-in-law (husband’s sister) and her husband.  It wasn’t even a direct conflict, but because it affected a relation, she felt the needs for a palms-up recusal.

The kind of impartiality from Commissioner Nelson and Commissioner Fiegen are what South Dakota voters expect from their Public Utility Commissioner. Not declarations that they are running to oppose specific projects.  And here’s where Barth may have inadvertently gotten himself into trouble.

It’s not the first time it’s come up, as back in 1990, Democrat Commissioner Ken Stofferahn got himself drug into court for similar biases when he declared US West Communications were  “jackals in lambskins,” and they hauled the PUC into court demanding a recusal because of his bias.  They didn’t grant a blanket recusal, but they recognized that you don’t get to be a crusader:

The trial court was correct in the factual findings relating to Stofferahn’s unalterably closed mind, bias and prejudice and the judgment declaring that Stofferahn should be disqualified in cases pending at the time of the entry of the declaratory judgment. This does not mean, however, that Stofferahn cannot or will not adopt a different attitude at some time in the future. This very real possibility was specifically recognized and addressed in the trial court’s memorandum opinion which was made part of the findings of fact and conclusions of law:

Although Commissioner Stofferahn argues he has put aside his prior views and can fairly judge USWC, he has never recanted his views on the competitive status of telecommunication services in this state, an issue critical to the disposition of future deregulation and classification proceedings. Furthermore, it is evident he continues to adhere to that view as he argues to this Court that his statements were justified by his good faith concern to attract public attention to “the dangers of the legislation.”


In summary, we affirm the judgment disqualifying Stofferahn from participating as a member of the PUC where the material facts, law or policy involved in the docket concerns the deregulation or classification of telecommunication services, or involves the determination of the competitive status of telecommunication services of pending dockets, and also affirm the denial of USWC’s request that Stofferahn be disqualified in all future cases where USWC is a party.

The judgment declaring Stofferahn disqualified in all future dockets involving USWC where the material facts, law or policy involved in the docket involves the deregulation or classification of telecommunication services, or involves the determination of the competitive status of telecommunication services of future dockets is reversed.

Read that here.

So there’s a good chance he’s going to be forever disqualified from hearing these matters he’s campaigning on because of his already expressed bias. It won’t be a blanket ban, because at least the 1990 court wouldn’t allow that, but I’m guessing CO2 pipeline owners have a pretty good basis to force the matter to hearing to at least attempt to disqualify him. And there’s a good chance they may win.

While Jeff is entitled to his opinion, he probably should have run for another office if he’s going to be an anti-pipeline crusader. Because his position and anti-pipeline advocacy are incompatible with the job he’s placing his name on the ballot for, and I have no doubt they’ve taken note.

8 thoughts on “Democrat Public Utilities Commission candidate Jeff Barth might have just disqualified himself from CO2 pipeline hearings at the onset of his race”

  1. Commissioner Kristie Fiegen did exactly the right thing, avoiding a potential conflict of interest. As PP notes, “It wasn’t even a direct conflict, but because it affected a relation, she felt the need for a palms-up recusal.” Very impressed with her strong leadership.

  2. Please let me know when the Dems decide what they stand for. They have fractured our economy with the green new deal but now are against CO2 capture.

  3. Isn’t this CO2 capture pipeline only necessary because of green new deal nonsense? We are capturing carbon, piping it to North Dakota, and burying it. Why on earth are we doing that? The only reason is some artificially imposed environmental requirement.

    So as Chuck said – the Dems are for “climate action” but against actually taking any action? Got it.

    1. Ask Dan Lederman why we’re doing it. It’s not New Deal, it’s greenwashing. It wouldn’t be necessary if it weren’t for ethanol production.

  4. Who replace Ms. Kristie on the judge panel? And now Mr. Barth, who breathes heavy walking downhill, a carbon tax target himself if there ever was one, wants to replace Mr. Nelson on the panel? Balderdash.

  5. I’m no fan of Barth and suspect he’ll go down in November. However, I think we are ready for some change on the PUC. Fiegen and strong leadership is an oxymoron. Chris Nelson – nice guy, but my goodness, he’s been on the government payroll for how many years? Yes, government experience can be good, but outside perspective can also be good.

  6. We need a change on the PUC commission. Nelson has been on the commission way too long and has been a “yes” man for these pipeline companies. We need someone to stand up against eminent domain for private gain. These large corporations come in with their deep pockets and walk all over landowners. Barth is not afraid to stand up to Nelson and fight for landowners rights!!

    Watch this video:

    This video was a test of a pipeline rupture in a controlled facility with a relatively small (8″) CO2 pipeline which released approximately 136 tons of CO2 in 204 seconds. Maximum height of the plume was registered at 197 feet and maximum horizontal extension was 1312 feet. Note that the gas itself, which is colorless and odorless, is not confined to the visual plume that you see. Consider this with our SD winds!

    The Summit Carbon Solutions pipeline is proposed to be a 20″ pipe at 4 ft underground.

    When CO2 is condensed to pressures and temperatures needed for transport over large distances, it becomes more hazardous. This pipeline will be under 2,100 lbs of pressure.

    Carbon dioxide is odorless and colorless, a silent killer. According to OSHA, “Carbon dioxide is an asphyxiant. Concentrations of 10% (100,000 ppm) or more can produce unconsciousness or death. Lower concentrations may cause headache, sweating, rapid breathing, increased heartbeat, shortness of breath, dizziness, mental depression, visual disturbances or shaking.” OSHA also states that high concentrations can result in death in less than 15 minutes of exposure. At smaller concentrations, it can intoxicate you so that you can not think clearly enough to get yourself to safety. Even if you think that you can get away, CO2 displaces the oxygen in your car engine which results in your engine stalling out. (Carbon dioxide is also used to euthanize animals at packing plants.)

    This pipeline is scary and it’s not if there will be a leak, it’s when and where there will be a leak!!

    1. Maybe Barth should run for the state legislature. Abusing one’s position on the PUC to “stand up against eminent domain” would be illegal.

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