In a significant ruling on Thursday, the South Dakota Supreme Court determined that Summit Carbon Solutions, the company behind a proposed carbon-capture pipeline, has not yet proven it should be allowed to seize private land for public use through eminent domain. The ruling is a major victory for landowners opposed to the project, though Summit remains determined to continue its efforts in lower courts.
Summit Carbon Solutions is spearheading an $8 billion project to capture carbon dioxide emissions from 57 ethanol plants across multiple states. The captured carbon would be transported through a massive pipeline to a storage site deep underground in North Dakota. The project is a broader effort to reduce greenhouse gases and use federal tax credits to incentivize carbon capture and storage (CCS) technologies.
The pipeline would span 18 counties in eastern South Dakota, but many landowners along the route have resisted, refusing to allow the company access to their land. Some have taken legal action, arguing that Summit has no right to conduct land surveys or take land through eminent domain without proving it qualifies as a “common carrier.”
Summit has asserted that it qualifies as a common carrier. This legal designation allows companies transporting goods or services for public benefit to use eminent domain to gain access to private land. Common carriers include entities like electric companies or oil pipelines that serve the public for a fee.
However, the state Supreme Court disagreed, ruling that Summit has not yet demonstrated to lower courts that it meets this definition. The justices stated that Summit had not sufficiently shown that it was offering a public service by transporting a commodity for hire, as required to qualify as a common carrier.
The court also questioned the utility of the captured carbon dioxide, noting that the company intends to store it underground rather than put it to any productive use. As such, the court found it premature to classify Summit’s project as serving the public interest, sending the case back to the lower courts for further proceedings. The ruling left open the possibility for Summit to present more evidence in the future but made no judgment on whether the company could ultimately qualify as a common carrier.
Following the decision, Summit Carbon Solutions expressed confidence that it could meet the court’s requirements. Spokesperson Sabrina Zenor reiterated the company’s belief in the positive economic impacts of carbon capture, utilization, and storage, particularly for agriculture and rural communities. Summit remains committed to proving its project serves the public good and qualifies for eminent domain.
Zenor highlighted that the pipeline could help rural economies by providing new opportunities for farmers and landowners along the route, suggesting that the benefits extend beyond the environmental aspect of the project.
The Supreme Court ruling for landowners marks a significant milestone in their fight against the pipeline. Brian Jorde, an attorney representing more than 1,000 landowners, said the decision validated what he and his clients argued for three years—that Summit lacks the legal standing to take private land for the project.
Jorde also raised concerns that Summit might alter its strategy by claiming that the captured carbon dioxide could be used in enhanced oil recovery. This process involves injecting CO2 into aging oil wells to extract additional crude oil, which Jorde argued would undermine the project’s environmental goals by furthering the production of fossil fuels.
“If they start saying they’ll use the carbon to produce more oil, it completely contradicts the climate benefits they’ve been touting,” Jorde said. “This whole project just doesn’t make sense.”
The court’s decision has also reverberated in political circles. Over the past two legislative sessions, attempts to ban the use of eminent domain for carbon pipelines have failed in the South Dakota legislature. Rep. Karla Lems, R-Canton, who supported those efforts, said the court ruling vindicates lawmakers who opposed the use of eminent domain in this context.
“The arguments we made in the legislature are now being upheld by the highest court in the state,” Lems said.
House Majority Leader Will Mortenson, R-Fort Pierre, worked to pass legislation last year that provided additional protections for landowners while still allowing pipeline companies to seek state permits. He, too, felt justified by the court’s decision, having long argued that carbon pipelines like Summit’s should not have access to eminent domain because they do not transport traditional commodities like oil or natural gas.
Mortenson added that the ruling is just the latest step in a larger battle over the future of carbon pipelines and their use of eminent domain. Opponents of the project have filed petition signatures to put the issue before voters in the November 5 general election, aiming to overturn legislative protections for pipeline companies.
“For the last two years, I’ve argued that carbon pipelines are not like other pipelines,” Mortenson said. “They’re not transporting a commodity that benefits the public, and they shouldn’t be able to take land from unwilling landowners without proper justification. This ruling proves that point.”
Summit will return to the lower courts to further argue its case while opponents continue to rally political and public support against using eminent domain for the project. The outcome could have far-reaching implications for both the future of carbon capture and the rights of private landowners across the country.
