South Dakota Supreme Court remands Summit Carbon Pipeline case to lower court

(The Center Square) - The South Dakota Supreme Court is asking a lower court to revisit questions about the status of Summit Carbon Solutions and its authorization to conduct surveys on private land.

The company announced the 2,500-mile pipeline in December 2021, which includes Iowa, South Dakota, Nebraska and Minnesota. The pipeline ends in a North Dakota carbon capture facility.

South Dakota landowners are battling with the company in court. They said in two separate court cases that Summit was not a common carrier and carbon dioxide is not a commodity, so eminent domain laws do not apply.But the district courts did not agree and sided with Summit.

The Supreme Court said 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."

The landowners also argued that the trial court "abused their discretion in denying Landowners’ request for further discovery."

"The record demonstrates that SCS resisted Landowners’ efforts to obtain depositions and documents that are of fundamental importance to the issues in this case...Landowners are entitled to conduct depositions and have access to documents relevant to SCS’s pricing terms and business model under conditions prescribed by the courts to preserve the confidentiality of the information," the court said.

Summit said in a statement provided to The Center Square it is evaluating the court's decision and looks forward "to providing the information requested to the District Court that reaffirms our role as a common carrier, and that CO2 is a commodity."

Pipeline Fighter Hub called the decision a victory. The organization launched in 2021 as a project of the Bold Education Fund, a group that said it helps landowners fight eminent domain abuse.

“South Dakota landowners may rightfully refuse Summit’s surveyors, and any landowner that was violated by Summit’s invasive surveys can now go after this private company for damages," said Ed Fischbach, a South Dakota landowner and farmer in a news release posted on the organization's website.

The South Dakota Public Utilities Commission rejected Summit's application, but the company can reapply. South Dakota lawmakers passed Senate Bill 201 during the 2024 legislative session. Dubbed the "Landowners Bill of Rights," the bill would allow the South Dakota Public Service Commission to overrule city and county ordinances if considered too "burdensome." Voters must approve the bill in November to become law.

"The economic impact of carbon capture, utilization, and storage (CCUS) on rural America is significant, and will greatly benefit agriculture and farmers," the company 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, and look forward to progressing this project."

The Iowa Utilities Commission is the only regulator that has approved the project. The Minnesota Public Utilities Commission just wrapped up two public hearings on the pipeline. A public comment period is open until Sept. 21, according to online documents.North Dakota rejected Summit's initial application, but the company has reapplied.