The controversial Summit Carbon Solutions pipeline aiming to send emissions from 57 ethanol plants in five states for storage underground in North Dakota faces yet another setback. The South Dakota Supreme Court recently handed down a unanimous ruling that precludes the company from invoking eminent domain to survey private property for a route, among other key findings. The outcome, Agweek notes, could amount to a turning point in the view of the project’s opponents in the state.
This decision, released on Thursday, Aug. 22, is considered a major victory for landowners and those opposed to the proposed pipeline project. The court ruled that Summit is not a common carrier and did not provide evidence to prove that they are a common carrier, and furthermore, that CO2 is not a commodity, unlike what many proponents of the pipeline have long argued.
Ed Fischbach, a farmer near Mellette, South Dakota, and an impacted landowner, helped lead the opposition against Summit and said that without the ability for the company to use eminent domain, the entire project could be off the table considering contingencies surrounding South Dakota put in place by states such as Iowa and North Dakota.
The ambitious proposal, unveiled by Summit Carbon Solutions in 2021, would run through portions of Iowa, Nebraska, Minnesota, South Dakota and North Dakota. In June, Iowa regulators approved construction of the pipeline, contingent on the company receiving the necessary approvals in North Dakota and South Dakota.
The proposed pipeline would run through 18 counties across South Dakota, and when Summit began surveying on private land without consent, a group of landowners began to push back and filed a lawsuit saying that the company had overstepped its legal abilities on surveys of private land.
The Supreme Court’s ruling also overturns a previous circuit court summary judgment on common carrier issues, saying it was “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.”
Summit plans to respond and bolster its case with the state’s high court in the coming weeks. At the same time, the company will continue pursuing permits in Minnesota and North Dakota.
Summit Carbon Solutions said they will evaluate the South Dakota Supreme Court’s decision and “look forward to providing the information requested to the District Court that reaffirms their role as a common carrier, and that CO2 is a commodity.”
“The economic impact of carbon capture, utilization, and storage (CCUS) on rural America is significant, and will greatly benefit agriculture and farmers,” said a spokesperson for Summit Carbon Solutions in a statement. “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, and look forward to progressing this project.”
No word yet on if and when Summit Carbon Solutions will refile for a permit in Nebraska, which turned down the company’s permit earlier this year.