ND, SD may ban eminent domain for CO2 pipelines
On Monday, the South Dakota House of Representatives passed HB 1052, which would ban eminent domain for carbon pipelines. This is a predictable backlash to the Summit Carbon Solutions Pipeline project, which has faced controversy from property owners where the proposed route crosses private land.
The pipeline would run 2,500 miles and carry CO2 emissions from 57 ethanol plants in Iowa, Nebraska, Minnesota, North Dakota, and South Dakota into an underground depository in North Dakota. As of August 8, 2023, American Experiment government accountability reporter Tom Steward noted that “the company says roughly 20 percent of easements have not been voluntary.”
The company argued before the South Dakota Supreme Court that they are a common carrier and ought to be allowed to invoke eminent domain. The Court rejected that argument and said it was “premature to conclude that [Summit Carbon Solutions] 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 South Dakota House bill, HB 1052, states simply:
Notwithstanding the provisions of any other law, a person may not exercise the right of eminent domain to acquire right-of-way for, construct, or operate a pipeline for the preponderant purpose of transporting carbon oxide.
The South Dakota Searchlight reported on the 49–19 vote:
Supporters of the bill attended the House debate Monday at the Capitol and cheered when the vote was displayed. House Speaker Pro Tempore Karla Lems, R-Canton, proposed the legislation and said it does not stop carbon pipelines from being built in the state.
“They just don’t get the supreme power of eminent domain to force their projects down the throats of South Dakota people,” Lems said.
Summit has voluntary easement agreements with some landowners to cross their land, but needs eminent domain to gain access from landowners who are unwilling to sign easements.
Supporters of the bill said carbon pipelines do not meet the public-use standard required for eminent domain, which has typically been used by projects such as water and oil pipelines and electrical transmission lines.
Opponents of the bill warned of economic repercussions for the ethanol industry…
But House Majority Leader Scott Odenbach, R-Spearfish, said Trump is eliminating unwise environmental policies, and tax credits for carbon pipelines could be next. He said there were three reasons to vote in favor of the bill: voters sent a message in November with the defeat of a referred law perceived as helping carbon pipelines; carbon pipelines are hazardous when they leak; and the Legislature has a responsibility to clarify if carbon pipelines have eminent domain authority.
North Dakota has issued Summit the necessary permits but “is still facing some landowner resistance,” according to the North Dakota Monitor. The North Dakota legislature has introduced HB 1414, which would prohibit eminent domain for carbon pipelines (alongside solar, wind, and hydrogen projects) and revoke common carrier status. A host of bills relating to carbon capture will be heard this week in House and Senate committees, with the House Energy and Natural Resources Committee meeting at 2:30 p.m. Thursday and accepting written testimony until an hour prior.