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Legislators Consider Changes to Law That Allows CO2 Pipeline Surveys Without Landowner Permission

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.

14 Comments

  1. larry kurtz 2022-09-23

    Most of the corn grown in the US is fed to domestic livestock but a third of it will be processed for ethanol this year and subsidies of up to $700 an acre are the incentives to plant even more next year. 20 of Iowa’s 99 counties are devoted exclusively to food that is ultimately burned for automobile fuel. Industrial agriculture is ecocide and for those of us who love the Earth shucks like Summit’s are subsidized corporate greenwashing but ironically many Republicans actually benefitting from reduced greenhouse emissions decry them as caving to the Green New Deal.

  2. Runs_With_Fire 2022-09-23

    From Wikipedia A simple google search says;
    Livestock Feed 4345 million bushels 33%,
    Ethanol 3552 million bushels 27%,
    Exports 1450 million bushels 11%
    Other processing* 1420 million bushels 11%
    DDGS 1293 million bushels 10%
    Residual Use 1055 million bushels 8%

  3. sx123 2022-09-23

    Will everyone in SD get income from the CO2 pipleline? (Ha)

    This CO2 pipleline seems like a big waste of time and money to me. I’d rather it spent on getting a bigger water pipeline to my place. Something useful.

  4. John 2022-09-23

    There should not be anymore granted rights-of-way. We have enough. Put new developments in existing rights-of-way. Engineer the problem. Don’t create new problems. Project economics is no excuse.

  5. Jake 2022-09-23

    I agree with John. Existing rights of ways are everywhere; county section and highway lines (governmental) , highline, and pipeline , rights of way given by government edict, etc. Force these private companies to share these existing right-of-ways with other profit- motivated corporations.

    Why should private land-owned and taxes paid by owner-be given up willy-nilly to any profit-making scheme dreamed up by corporate entities for THEIR benefit first off be GIVEN up to THAT corporation? Said corporation for sure would raise ‘holy hell’ if their land was trespassed on in similar fashion without their approval. Wouldn’t they now?

  6. Cory Allen Heidelberger Post author | 2022-09-24

    Ruth, thanks for those numbers. The Wikipedia article on maize reports USDA figures from 2008 showing livestock feed taking 43.4% of the U.S. corn crop, ethanol 30.2%, and human consumption—grits, corn flour, corn meal, beverage alcohol—only 2.7%.

    Curious: what percentage of the Summit CO2 pipeline route cuts through corn field? What percentage cuts through (and thus will destroy for at least a couple decades) shelterbelts? What percentage fo the route cuts through native grass or grazing land?

  7. Cory Allen Heidelberger Post author | 2022-09-24

    Enough rights of way, John and Jake? That’s an interesting suggestion. It would be very interesting to get a state wide map and county records and tally up what percentage of South Dakota land is not fully under the control of its owners. We could have a really good engineering discussion over such data/ Surely there are some kinds of infrastructure that aren’t compatible and should be laid in the same routes. Maybe we can’t lay everything in highway rights of way due to the disruption to motor traffic that would be caused by the constant inspection and maintenance work that all the pipelines would require.

    But I can see a couple of logical maxima that would arise in that debate. First, there is surely a maximum amount of right of way that we can allow. We can’t let every inch of private property be gobbled up by rights of way… unless we want to go Marxist, dissolve all private property, and subject every acre to public use. But I can also envision some practical maximum of infrastructure that we could place in one right of way. We can lay only so many concrete lanes, metal pipes, electrical and fiber-optic cables, and bullet trains within a 150-foot span. Eventually a 150-foot span would be jampacked edge to edge from 50 feet above to 50 feet below, and we couldn’t practically piggyback one more pipe. We’d have to either remove or reduce some of the existing infrastructure to make room for the new pipe, expand the right of way, or say, “Sorry, no more infrastructure.”

    Imagine reaching a point of maximum allowable infrastructure: no more new roads or pipelines—we have to make due with what we have. We’d have to set some priorities then.

    Of course, we don’t have to reach that theoretical maximum to tell our Iowa friends and ethanol makers to set some priorities. The Summit pipeline is essentially a waste disposal: they want to use our land as a way to get rid of the waste from their industrial process (and turn it into two cash flows: one from federal tax credits, another likely from selling the CO2 to Bakken oil producers for fracking). Instead of surrendering our land for their waste transport, might it be more sensible to protect land rights and tell the ethanol industry to make less waste in the first place, or at least capture their waste and render it harmless/profitable on their site?

  8. John 2022-09-24

    In South Dakota, outside of the Black Hills Fire Protection District, a right of way exists every 5280 feet. They are section lines. They are 66 feet wide. Of course, those existing rights-of-way do not include the likely hundreds of thousands of miles of other existing rights-of-way for non-section line roads, rail roads, pipelines. utility lines, etc. Enough already. The age of drawing lines on the empty map is over. Engineer the problem. Don’t create new problems.

    Recently Black Hills Power ripped out trees forever from the national forest — to create yet another new powerline in a forest crisis-crossed with powerlines and other rights of way, or go around the “island in the prairie”. Forest “custodians” (use that word charitably) failed their stewardship and conservation charter. Instead they permanently converted a swath of forest to a forestless corridor. Additionally, powerlines ought be buried, as they are in LA and NYC, and some lesser neighborhoods.

  9. P. Aitch 2022-09-24

    Whatever Dan Lederman and the RCC (Roman Catholic Church) want they get. Do you SD’ers like being led around like little children?

  10. RS 2022-09-24

    What’s going on that now the producers of beer either can’t get CO2 to make beer or are facing huge increases in the price of it? Something doesn’t fit if one industry calls it essential and the other is calling it a waste product.

  11. Arlo Blundt 2022-09-24

    I recall that in the Pierre area, and in some of the goose hunting areas of the northeast, rights of way were traditionally used by goose hunters for access to “flyover areas ” near the refuges on the Missouri and shallow prairie lakes (Lake Thompson comes to mind.). Large commercial goose hunting camps (seems like they were all owned by Sioux Falls Dentists) moved in, and over the strong objection of the Issac Walton League and Wildlife groups, somehow wrangled control of rights of way near their property so that local hunters wouldn’t “poach their geese and pheasants.” As I recall the County Commissioners were complicit in this land grab.It was a blatant “rich hunter” vs. “everyday working man” contest for control of public hunting land. The hunting clubs fenced off the right of ways and tried to prevent access in other ways and generally won control near their properties. Tony Dean used to complain about it on his radio show for naught. Rights of Way need to be preserved. They have been badly misused by the wealthy commercial interests.

  12. leslie 2022-09-25

    Is CO2 injection part of the solution? Maybe. Is eminent domain a public use for CO2 pipelines? Maybe. But:

    The climate crisis waits for no one. “Every other issue, no matter how large it looms in the immediate present, is secondary to the accumulating evidence that the planet itself (or at least large parts of it) may be edging toward uninhabitability.***To stand on the bluffs above [Alaska’s] Chukchi Sea, looking down at a series of broken and ruined seawalls that have already failed to hold back the power of the ocean, and to consider that there are politicians in this country who are unwilling to do anything about the climate crisis, or who even deny it exists, is to wish they all could come and stand on these bluffs and look out at the relentless, devouring sea.” In the End, Climate Change Is the Only Story That Matters- -To pretend otherwise is just to build the walls of your sandcastle higher.

    By Charles P. Pierce, Esquire Magazine, SEP 24, 2022

  13. grudznick 2022-09-25

    If people used CO2 guns more for hunting we’d all be better off.

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