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Landowners in path of carbon pipeline challenge constitutionality of South Dakota law

Iowa-based Summit Carbon Solutions says its $4.5 billion pipeline project will help ethanol plants lower their carbon score. The project aims to capture greenhouse gas emissions and pipe the CO2 to western North Dakota for underground storage. But a lawyer is trying to keep Summit off the land owned by his clients.

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LEOLA, S.D. — A lawyer representing landowners in the path of a pipeline project says a South Dakota law that gives surveyors from the pipeline company access to private land is unconstitutional.

Brian Jorde of Nebraska-based Domina Law filed a legal challenge on June 28, arguing that a state statute cited by Summit Carbon Solutions in letters to landowners violates the South Dakota Constitution as well as the 14th Amendment to U.S. Constitution.

The filing seeks an injunction to keep representatives from Summit from going on to land where the pipeline might run and asks for a trial and a ruling on the constitutionality of the law.

The filing was made in McPherson County in north-central South Dakota, where landowners have been vocal in their opposition to the Summit pipeline.

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Summit Carbon Solution is an Iowa-based company behind a $4.5 billion project to capture carbon dioxide emissions from ethanol plants in five states and pipe it to western North Dakota for underground storage. The main trunk of the hazardous materials pipeline would angle through eastern South Dakota, with about 475 miles of pipeline in total.

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Summit filed for a permit to build the pipeline with the South Dakota Public Utilities Commission in February.

In letters to landowners dated June 4, 2022, Summit references state law 21-35-31, which gives entities seeking such a permit access to property to survey it, even if the property owners have refused access.

A portion of a letter from Summit Carbon Solution to a landowner, included as part of an exhibit in a court filing in South Dakota.
A portion of a letter from Summit Carbon Solution to a landowner, included as part of an exhibit in a court filing in South Dakota.

In some cases where the property is on a floodplain, Summit says it needs to do “deep testing,” using a backhoe to dig trenches up to 10 feet long, 10 feet deep and 3 feet wide.

“This will allow archaeologists and cultural resource specialists the ability to determine whether cultural materials are present. Once this deep testing survey work is completed, any trenches will be backfilled and the ground will be graded to near existing conditions.”

Summit’s letter says it has obtained a bond to compensate landowners for any property damage, as is required by law.

The law also requires a 30-day notice to landowners before entering the property.

Summit provided the following statement from John Satterfield, director of regulatory affairs, in response to the filing:

“Summit Carbon Solutions continues to work closely with landowners across the Midwest to create a mutually beneficial partnership built around voluntary survey permissions and easements. In South Dakota, the company has secured nearly 350 miles of voluntary survey permissions and has signed over 115 miles of voluntary easements.

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“While Summit Carbon Solutions doesn’t comment on current litigation, we think it’s important to highlight the need and role surveys play. Surveys are a critical aspect of the project and permitting process. There are three types of surveys our team is conducting, each with specific objectives:

  • Environmental/Biological — Study and minimize environmental impacts, including sensitive habitat and threatened and endangered species. 
  • Cultural — Study and minimize impacts on historic and cultural sites, including those important to tribes and Native American nations.
  • Civil/Construction Review — Verify land boundaries. Obtain critical information to ensure the safe construction and operation of the system. 

“This project represents a nearly $800 million investment in South Dakota that will open new economic opportunities for ethanol producers, strengthen the marketplace for corn growers, and generate tens of millions of dollars in additional property taxes to help local communities support schools, hospitals, roads, and more. Summit Carbon Solutions will work, as we have over the past year, to help the state realize these significant and long-lasting benefits, while ensuring the project is also safe for landowners, communities, and the environment.”

A map of the Summit Carbon Solutions proposed pipeline route through South Dakota.
Summit Carbon Solutions proposed pipeline route through South Dakota.
Summit Carbon Solutions

So far, Summit has only applied for permits in Iowa and South Dakota, but asked for more time to finalize its route in South Dakota.

The project has generated an unprecedented response with the South Dakota PUC, with a record number of comments and intervenors, with the vast majority stating their opposition to the project.

Reach Jeff Beach at jbeach@agweek.com or call 701-451-5651 (work) or 859-420-1177.
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