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Resistance to Improper Use of Eminent Domain Unites Carbon Dioxide Pipeline Opponents

Joshua Haiar writes a good article on the strange political bedfellows resisting carbon dioxide pipelines in South Dakota and the single principle uniting them: corporations should not get to use eminent domain to build their private project:

Opponents of eminent domain for carbon dioxide pipeline projects in South Dakota have forged a unique coalition. It includes Republicans, Democrats, climate change deniers who see the pipelines as a boondoggle, and environmentalists skeptical of the pipelines’ benefits.

Many of them agree on one contention: that unlike water and natural gas pipelines, electrical transmission lines and other projects that have used a legal process called eminent domain to gain access to land, a liquified carbon dioxide pipeline would not deliver a product needed by the general public. Therefore, opponents say, carbon pipeline projects should not be allowed to use eminent domain to access land against a landowner’s will [Joshua Haiar, “Unusual Alliances Emerge amid Opposition to Eminent Domain for Carbon Pipelines,” South Dakota Searchlight, 2023.07.07].

Senate President Pro Tempore Lee Schoenbeck (R-5/Lake Kampeska) has tried to protect his corporate Republican pipeliner friends from that one unifying point of opposition by arguing, most recently in a June 29 radio interview with Steve Jurrens, that pipeline protestors can’t logically oppose eminent domain because it is essential to building roads, power lines, and water pipes. As I explained last year, Schoenbeck’s response is a fallacy: the public utilities Schoenbeck cites provide goods and services directly to all members of the public; the proposed carbon dioxide pipelines “only turn an ethanol-plant waste product into a profit line for a few favored private businesses. When it comes to justifying an infringement on basic rights, there’s a big difference between infringing property rights to directly deliver electric light and heat to all of our neighbors and infringing property rights to directly profit a handful of big businesses.”

House Democratic leader Rep. Oren Lesmeister (D-28A/Parade) rebuts Schoenbeck with that distinction:

“It’s property rights versus corporate America,” said Rep. Oren Lesmeister, D-Parade. “Proponents will say everyone should turn off their faucets and lights because eminent domain made that happen. I challenge people to look into that. Very little, if any, eminent domain is used to put in a power line or a water line because ‘we the people’ wanted those” [Haiar, 2023.07.07].

Not just wanted those utilities but needed them. You don’t need CO2 in your house, and neither you nor any of your neighbors will get CO2 in your house from the pipeliners who want to seize your land. If they want to to dispose of their waste and make money from tax breaks for doing so, they should have to do so on their own property.


  1. Donald Pay 2023-07-10 06:52

    This type of organizing was common in South Dakota between 1970 and 2000, starting with the opposition to the Oahe Irrigation Project.

  2. Cory Allen Heidelberger Post author | 2023-07-10 07:11

    We could benefit from more of that cross-partisan cooperation. South Dakotans need to look past the political labels and recognize the real threats to their livelihood and liberty.

  3. M 2023-07-10 07:12

    If landowners in S.D. lose this battle, corporations from around the globe will buy up every acre Noem has to sell.

    How would a stacked Supreme Court rule in defining eminent domain? Their man Trump tried using it once to buy Sesame Street in New York City, thus the character Donald Grump on the tv show.

  4. DaveFN 2023-07-10 08:55

    Ah, but these “private projects” are in the interest of the greater public good, namely, sequestration of carbon dioxide to save the planet from global warming. These projects prop themselves up on recognized official policy promulgated at the governmental level, and are recognizably rewarded by tax credits, ergo eminent domain is thereby justified.

    Same logic as used to justify national COVID vaccine policies. While vaccines may and indeed do harm a tiny minority of individuals, the policies are in the interest of the greater public good, and therefore are fully justifiable.

  5. bearcreekbat 2023-07-10 10:14

    Several decisions of the SCOTUS suggest that under the federal 5th Amendment, at least, DaveFN’s comment would carry great weight in the SCOTUS. And relatively recently, the Kelo decision confirmed that deciding whether the taking serves the required public purpose is not precluded because that taking is for economic motives, nor because the taking financially benefits a private party.

    . . . petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. . . . Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized.

    . . .

    . . . the government’s pursuit of a public purpose will often benefit individual private parties. . . .The owner of the department store in Berman objected to “taking from one businessman for the benefit of another businessman,” referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment. Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of government . . . .” (citations omitted)

    Interestingly Justice Thomas and O’Connor dissented in Kelo arguing that “economic development” should not be classified as a public purpose. While most federal precedent appears to reject Thomas’ argument perhaps the new conservative majority would now join Thomas and overrule any inconsistent prior decision, such as the Kelo case, given this new majority’s expressed distaste of longstanding precedent

    One twist from Kelo is the required deference federal courts must give to local authorities in deciding whether the proposed taking actually qualifies as a public purpose. It would seem that the federal courts have been told not to interfere with whatever decision local authorities make. Here if opponents of the pipeline can convince State officials that the taking doesn’t serve a public purpose it would be doubtful that the Company could successfully challenge that decision.

    We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline.

    But if the State concludes otherwise, then opponents would have to look to the new conservative majority of the SCOTUS and urge them to accept Thomas’ viewpoint, which seems almost ironic.

  6. sx123 2023-07-10 10:55

    I think the CO2 pipeline is a boondoggle but that doesn’t make me a climate change denier or global warming denier. Anyone that can read a temperature chart and doesn’t deny reality can see that global temp averages have been increasing.

    The pipeline is simply a boondoggle, all by itself. I want to see the math that includes the amount of CO2 generated to build the pipeline infrastructure, build the interconnects, liquify the CO2, operate, and maintain the pipeline. What are the energy sources used to liquify and pump the co2 on an ongoing basis? If you must take someone’s land and livelihood, your math, long term math, better be spot on. Natural gas producers are lovin’ these projects (corn = natural gas + sun + diesel)

    When it leaks, and it will leak, nothing will have been gained.

    My hunch is that since co2 pipeline operators are relying on government tax credits, they aren’t sure of the long-term prospects or there would be huge investors (not piddly millions of dollar investors) funding the projects without government incentives.

    You wanna make a bigger impact on the environment? Quit driving, flying, boating, and using electronic devices. But that wouldn’t be any fun.

  7. All Mammal 2023-07-10 11:14

    It is for the greater good for me to not warsh my PFAS cream rinse down the drain. I’ll buy as much non-biodegradable shampoo and conditioner as I can find, put in a separate drain that snakes through certain SD investors’ yards, like KN’s, and sequester it in a drain field at my great uncle’s spread in Canton to save our planet… I will fill out a mountain of paperwork to satisfy the requirements for government incentives. Gimme gimme gimme. It’s for your own good, you suckers. Makes sense, if you don’t think about it.

  8. 96Tears 2023-07-10 11:16

    Thank you bearcreekbat and DaveFN. A crimson red state like South Dakota, Iowa and North Dakota ought to seize the opportunity to declare “states’ rights” and set the bar high enough to keep “woke” profiteers like Summit Carbon Solutions from getting eminent domain powers to rip off property owners and put the public at deadly risk for the next 40 years.

    One of the ironies here is the dyed-in-the-wool MAGA types would be admitting human-generated CO2 pollution and climate change merit radical action by letting SCS and other profiteers to ram their pipelines through South Dakota. Strange bedfellows, indeed.

  9. Donald Pay 2023-07-10 13:42

    Carbon dioxide pipelines may be a technology that will do some public good, but if you have to construct long-distance pipelines they are a pretty expensive way to reduce greenhouse gas emissions, even assuming all the CO2 gets siphoned down a borehole for deep burial. All the work necessary to build those pipelines may actually increase such emissions, at least in the short-term. I’d like to see cost/benefit analysis that looks at various alternative ways to reduce CO2. I’d like to see an environmental impact statement looking at alternatives for CO2 reduction and their impacts. If you could capture the carbon dioxide at the ethanol plants and develop a market for it locally, it might make some economic sense for rural communities to accept a short pipeline. If you are just crisscrossing lots of land to dump it somewhere else, it is sort of like what we fought in the 1980s with coal slurry pipelines and the 1990s with the garbage dumping

  10. sx123 2023-07-10 13:50

    Now some are saying the pipeline will not transport liquid co2 but rather co2 in a supercritical phase. And there is a lawsuit in Iowa about this.

  11. DaveFN 2023-07-10 15:56


    The advantage of carbon dioxide transport in the supercritical phase versus the liquid phase is that the viscosity of the former is approximately 100 times less in the case of the former, leading to less drag during transport, allowing for greater throughput. Nonetheless, drag can occur, resulting in pressure drops which in turn can affect the phase of the material.

    As far as pipeline materials, corrosion rate of steel (of which there are many types) is highly sensitive to the pH of the transport material. Water, in particular, is a culprit, reacting with carbon dioxide to form carbonic acid, although lower pH can also result in the formation of carbonate scale, protecting the pipeline material to some extent.

    As I’ve pointed out a week or so ago, despite the successful existence of long distance carbon dioxide pipelines used for enhanced oil recovery (Cortez, Sheep Mountain, Bravo, Val Verde, Canyon Reef, etc), these do not face the myriad unproven challenges proposed by the Summit pipeline.

  12. DaveFN 2023-07-10 19:16

    Donald Pay

    “I’d like to see cost/benefit analysis that looks at various alternative ways to reduce CO2. I’d like to see an environmental impact statement looking at alternatives for CO2 reduction and their impacts. ”

    So would I, with the significant caveat that the results of any such cost/benefit analyses are a function of who draws them up, and the best of scientists come to contradictory analyses of complex matters. We are not dealing with “objective” truth however much we might have the best of scientists doing the cost/benefit analyses.

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