The Permitting Risk Nobody Scores
Most permitting tools ask one question: is this document any good? It's the wrong question to end on.
In February 2022, Summit Carbon Solutions filed to build a CO2 pipeline across South Dakota. The application was serious. The fieldwork was real: agency consultation, habitat surveys, route development. By April 2025, the company reported it had spent more than $150 million in South Dakota alone. On surveys. On easements. On permitting.
It still doesn't have a construction permit.
Here's what a document-quality check would never have caught. While Summit's second application was under review, South Dakota enacted a law banning the use of eminent domain for carbon pipelines. Overnight, the basis the application rested on changed. The company could no longer secure survey access the way it had planned. The route it had filed was no longer legally viable. In April 2025, the Commission denied it, not because the document was poorly written, but because the ground under it had moved.
That is the part of permitting risk nobody scores. A permit application is a snapshot of a moving target. Statutes shift. Ordinances shift. Precedent accumulates, and some of it quietly goes stale. For projects with multi-year lead times, the governing basis can change more than once before a decision is ever reached. The exposure isn't in the prose. It's in the gap between when you commit capital and when the rules settle.
We think the permitting conversation has been anchored to the wrong layer. Document quality is table stakes. The harder question, the one that actually moves money, is whether the basis a decision rests on still holds, and what it costs you when it doesn't.
The Governing-Basis Problem
The permit-review timeline is only the visible tail of a project. Before an agency ever receives an application, the applicant has already chosen a concept, developed a route, negotiated access, commissioned surveys, prepared environmental and cultural evidence, engaged participating facilities, and built a schedule and commercial case around the governing rules as they were understood at the time.
Those decisions are not costless placeholders. They are commitments that become progressively harder to reverse as a project matures. Regulatory intelligence therefore cannot begin when an application is filed. It must start while the applicant is still deciding where, how, and under what assumptions to invest.
By the time a permit application becomes visible, the project has already made decisions that a later regulatory change may invalidate.
How the Ground Moved Under Summit Carbon
The South Dakota segment of Summit's Midwest Carbon Express pipeline is a useful case study because the public record connects pre-application activity, repeated permit review, an explicit change in governing law, applicant-reported spending, and consequences that propagated into a second state's permitting process.
The signal matured from litigation and a proposed bill into an enacted basis change, an applicant schedule impact, a permit denial, and cross-state reconfiguration.
Curve shape is illustrative and not a reconstruction of project spending. $150M+ is applicant-reported as of April 17, 2025.
Landowner, agency, and stakeholder outreach begins alongside route environmental and cultural surveys, months before any application is filed.
The application estimates $785 million in South Dakota construction, with construction projected to begin in Q1 2023.
The Public Utilities Commission finds the proposed route conflicts with county ordinances and cannot be permitted without preemption.
The South Dakota Supreme Court reverses summary judgment on Summit's common-carrier status, leaving its survey-access authority unresolved.
A revised, approximately 698-mile South Dakota route begins a new formal review cycle.
The bill prohibiting eminent domain for carbon-oxide pipelines is introduced in January and signed in March, effective July 1, while the second application is still pending.
Summit tells the Commission that survey access has changed, required route surveys will be significantly delayed, and the review timetable is no longer realistic.
Summit reports more than $150 million invested in South Dakota. The Commission denies the application, finding the route nonviable under the new law.
The South Dakota law change contributes to a remand and revised permit conditions in Iowa, showing how one state's governing-basis shift can reach an integrated, multistate project.
Where the Exposure Actually Sits
For a long, linear, multijurisdictional project, regulatory exposure begins when the project starts making location-dependent decisions, not when an application is submitted.
- Route architecture and alternatives: corridor selection determines counties, landowners, crossings, surveys, and local-law exposure.
- Survey access and field evidence: civil, biological, cultural, wetland, waterbody, geohazard, and constructability work is needed to support a permit-ready route.
- Land and easement strategy: negotiations and option agreements are route-specific and can lose value when authority or alignment changes.
- Engineering and application development: design, safety analysis, expert testimony, mapping, and environmental documentation accumulate through each filing and rework cycle.
- Commercial and network commitments: participating facilities, storage locations, schedules, and permits in other states depend on the route remaining viable.
- Time and carrying cost: delay extends teams, consultants, options, financing, partner uncertainty, and the period before revenue can begin.
How a Basis Shift Converts Prior Work Into Risk
- Evidence collection gets interrupted. HB 1052 changed the practical ability to obtain the survey access needed to prove route feasibility.
- An application can become incomplete while pending. The Commission concluded the second application no longer contained a viable route or the information required to support one.
- Previously optimized scope has to be reopened. Summit proposed reconsidering participating plants, dropping difficult segments, and negotiating new easement options.
- Approvals become system dependencies. Iowa's permit conditions and later remand show that an approval in one state can remain contingent on route viability in another.
- Value isn't simply lost or preserved. Some work is reusable, but route-specific surveys, options, engineering, and schedule assumptions may require rework or become stranded entirely.
The $150 million figure is Summit's own reported statement, not an independently audited cost allocation, and the underlying filing does not separate spending before the first application from spending during the second review. The defensible conclusion is that pre-submission and cumulative pre-approval exposure became substantial, not that a specific share of total project capital had already been spent.
What This Means for Regulatory Intelligence
Early signals existed at multiple levels: a county-ordinance conflict, litigation over survey and eminent-domain authority, an introduced bill, its enactment, an applicant schedule motion, and a final permit consequence. Each signal carried a different level of maturity and a different planning weight.
The practical requirement is a synchronized record of what a project has committed, what governing basis was known at each point, and what changed. That record lets an applicant act while choices are still reversible, and lets an agency understand why a pending application, its evidence, or its schedule may no longer reflect the current basis.
Document quality remains essential, but it is only one layer of project risk. The harder question, the one that actually affects capital, schedule, and project viability, is whether the governing basis a project rests on still holds.
Projects do not become exposed simply because regulations change. They become exposed when those changes affect decisions already made. That is the same discipline we described in our piece on Defensible Regulatory Intelligence, applied to a different failure mode: the role of regulatory intelligence is to identify that moment while the project still has options.