KELO-TV reports that some legislators are considering amendments to a 2016 law that is allowing our friends from Iowa, Summit Carbon Solutions, to tromp all over South Dakotans’ land without permission to make surveys for their as-yes unpermitted carbon dioxide pipeline:
A 2016 law allows companies that have projects under the state Public Utilities Review (PUC) to enter property without landowner permission to do surveys.
“That caught people by surprise,” said JD Wangsness, a Republican candidate for South Dakota House District 23. Wangsness won his primary and doesn’t have a Democratic challenger so he will likely be one of two people representing District 23 in the state House.
Wangsness said the 2016 law on surveys needs another look and so does any possible use of eminent domain as it relates to the proposed CO2 project.
Scott Moore, another Republican who is likely to represent District 23 in the South Dakota State House, agreed that landowner issues and eminent domain will be discussed in the Legislature [Rae Yost, “Land Is Focal Point of Legal Disputes with CO2 Pipeline,” KELO-TV, 2022.09.22].
Surprise? The bill in question appears to be 2016 House Bill 1134, and nearly everyone seemed to be on board with this law when Representative Tim Johns (R-30/Lead) brought it. In both House Judiciary and Senate Commerce and Energy, the utilities, the Stockgrowers’ Association, Dakota Rural Action, and land rights advocate Bret Clanton all testified in support of the bill, and no one spoke in opposition. The bill drew only six nays from Republicans, including cranky conservatives Representative Steven Haugaard and Senators Phil Jensen and Jeff Monroe. The bill thus passed without controversy.
Perhaps the surprise lies in the wording. The key provision appears to be, “Each person vested with authority to take private property for public use may cause an examination and survey to be made as necessary for its proposed facilities. The person or the person’s agents and officers may enter the private property for the purpose of the examination and survey.” The rub here may be that Summit Carbon Solutions isn’t actually vested with any authority to take private property yet, since the PUC hasn’t approved the pipeline and since no court has yet said, “Sure, your CO2 pipeline is a common carrier, so you can use eminent domain.”
Keep an eye on that phrase, “public use”. I tend to think “public use” means the public can use it. Roads, parks, hiking trails—open to any member of the public. A carbon dioxide pipeline seems not to be open for public use; it is controlled by a private corporation and accessible only to a few select users by private contract.
Hmm… maybe it’s not the statute that’s the surprise but simply Summit Carbon Solutions’ claim to use it.