Published: August 28, 2024 | Share This

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The company trying to build a carbon-capture pipeline through South Dakota has not yet proven it should be allowed to take private land for public use, according to a state Supreme Court ruling issued Thursday.

Landowners who oppose the project hailed the decision as a victory, but the company said it will go back to lower courts to prove its case.

Summit Carbon Solutions, of Iowa, is developing an $8 billion pipeline project. It would capture carbon dioxide produced by 57 ethanol plants in multiple states and transport it to an underground storage site in North Dakota. The company hopes to capitalize on federal tax credits incentivizing the removal of heat-trapping carbon from the atmosphere.

The pipeline would pass through 18 counties in eastern South Dakota. Some landowners along the route sued to stop the company from conducting land surveys.

COURT DECISION EXPLAINED

Summit says the surveys are justified because the company qualifies as a common carrier, and common carriers are allowed to use eminent domain.

A common carrier transports goods for the general public in exchange for a fee, such as electricity in a transmission line or oil in a pipeline. Common carriers are allowed to use eminent domain to gain land access from unwilling landowners, by going to court and asking a judge to determine fair payments.

The state Supreme Court ruled Summit had not yet proven to lower courts that it’s “holding itself out to the general public as transporting a commodity for hire.”

“It is thus premature to conclude that SCS is a common carrier, especially where the record before us suggests that CO₂ is being shipped and sequestered underground with no apparent productive use,” the court ruled.

The Supreme Court sent the matter back to South Dakota’s lower courts for further proceedings, adding that the Supreme Court justices “make no judgment as to SCS’s ultimate common carrier status.”

SUMMIT PLEDGES TO CONTINUE

Summit spokesperson Sabrina Zenor said in a statement that the company is confident it can provide additional information to lower courts proving its project qualifies as a common carrier.

“The economic impact of carbon capture, utilization, and storage on rural America is significant, and will greatly benefit agriculture and farmers,” Zenor said.

“We are committed to ensuring that these benefits reach communities across our project footprint as we continue to be a valuable partner in this growing market,” Zenor added.

Meanwhile, attorney Brian Jorde, representing more than 1,000 landowners affected by the project, told South Dakota Searchlight the ruling validated what he and his clients have argued for three years.

The project has approval from the Iowa Utilities Board, but that approval is conditioned on Summit gaining permits in North Dakota and South Dakota, which have not been granted. Jorde said the South Dakota Supreme Court decision means Summit is now “in a real bind.”

Jorde also alleged broader implications for Summit’s business model. He said the company might try to bolster its argument for being a common carrier by citing the possibility that carbon dioxide could be used for enhanced oil recovery. In that process, carbon dioxide is injected into aging oil wells to make crude oil less thick, help it flow better, and cause it to expand toward wells.

Jorde said that would undermine the project’s purported benefits for the climate.

Source: North Dakota Monitor

Summit Carbon Solutions is driving the future of agriculture by expanding economic opportunities for ethanol producers, strengthening the marketplace for Midwest-based farmers, and creating jobs. In developing the largest carbon capture and storage project in the world, the company seeks to connect industrial facilities via strategic infrastructure to store carbon dioxide safely and permanently in the Midwest United States.

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