July 2024, Vol. 251, No. 7
Editor's Notebook
Editor’s Notebook: Landowners and CO2 Pipelines Amid South Dakota Legislation
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By Michael Reed, Editor-in-Chief
(P&GJ) — Among a flurry of recent measures advanced by local entities in the U.S., the South Dakota House recently passed a bill that would allow landowners to ask courts to decide if forced easements are justified in pending carbon dioxide capture pipelines within that state.
The bill emerged from a movement within South Dakota and other heartland states to expand landowners’ rights amid what supporters see as a need to clarify constitutional questions concerning eminent domain and CO2 pipeline construction.
In all, a state committee considered five bills during the first quarter of the year, which could directly affect the Summit Carbon Solutions pipeline project, sending three of those bills to the full House of Representatives for consideration.
The advancing bills address landowner protections regarding surveying, improved terms of agreements with pipeline companies and the addition of financial protections in cases involving eminent domain.
The raft of bills arrived at the state house after neighboring Iowa’s utility regulators turned down Summit’s Carbon Solutions permitting application in late-2023, due to the route’s conflict with local ordinances pertaining to distances between pipelines and “existing features.”
Iowa-based Summit responded that it still plans to build the 2,000-mile CO2 project across five states; it is designed to capture 15 mtpa of carbon dioxide from 51 ethanol plants and store it in North Dakota.
The company – which has already advanced some eminent domain orders for the project, according to public records – said it expected the project to be in operation in 2026, which would be two years later than its initial proposed timeline. In total, Summit seeks eminent domain for about 950 parcels, or about 25% of its route in Iowa, according to public records.
Separately, Summit Carbon Solutions recently received a construction permit to build, maintain, and operate the Midwest Carbon Express, a 688-mile pipeline, spanning 29 counties in Iowa.
Not surprisingly, one of the defeated bills in South Dakota would have prevented eminent domain declarations for CO2 pipeline projects all together, while another would have necessitated that a regulatory permit be in place before filing for eminent domain.
While those two losses may have brought a sign of relief from midstream companies, a separate bill that was advanced would require any individual or company wishing to conduct a survey on private property already have a siting permit application, pending or approved, filed with the state first.
It also requires that a 30-day written notice be given to the affected property owner. The notice would require inclusion of the expected date of the survey and the contact information for the person responsible for entry onto the property.
“This bill grants substantial benefits to landowners,” Rep. Will Mortenson, R-Fort Pierre, South Dakota, told the committee. “This bill isn’t going to stop any project from getting done.”
While the bill has received wide support from agricultural groups in the state, Summit spokesman Justin Bell has raised concerns about such a precedent.
“As far as I know, there’s not another state in the nation that requires compensation,” he told the South Dakota Seachlight.
The first, but quite possibly not the last.
Additionally, the bill would require those entering private properties for survey work to pay $500 to the property owner as compensation and cover any damage resulting from entry into the property.
Another bill introduced to the committee states that CO2 pipeline contracts could not exceed 50 years and would terminate immediately if the property is not used for the transportation of carbon dioxide within five years of going into effect. A minimum compensation fee of $1 per foot of pipeline would be paid each year the pipeline in in use.
Separately, a similar large CO2 project, The Navigator, which would have laid 1,300 miles (2,092 miles) – also within five states – was abandoned in September not long after being denied a permitting application by South Dakota.
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