North Dakota might sue South Dakota over its new law banning the use of eminent domain for carbon sequestration pipelines.
During the 2025 Session, Representative Karla Lems (R-16/Canton) successfully pushed to passage House Bill 1052, which in one blessedly simple sentence prohibits the use of eminent domain “to acquire right-of-way for, construct, or operate a pipeline for the preponderant purpose of transporting carbon oxide.” Passage of HB 1052 was another victory for opponents of a pipeline proposed by Iowa big-money Republicans to collect carbon dioxide from ethanol plants across the upper Midwest and carry it to North Dakota to collect tax credits for climate-change-mitigating carbon sequestration (which barely survived in the Republican budget reconciliation bill passed in July).
North Dakota Attorney General Drew Wrigley signaled Wednesday that he may challenge HB 1052 in court on Fifth Amendment and Commerce Clause grounds:
Calling it a “bad policy choice” and a “hostile act” by South Dakota, Wrigley says eminent domain is a “societal protection” and a “right of way for pipelines and other essential infrastructure [like] roadways and transmission lines.”
“They’re our friends. There’s a lot of great people down there, but I believe that was misguided legislation,” Wrigley told The Flag on Wednesday at the site of the North Dakota Petroleum Council’s annual meeting in Watford City.
“My question is how do you change the constitution with your legislation. It doesn’t work that way. The constitution controls all legislation.”
Wrigley says he’s “in the midst of conducting some legal research into what are North Dakota’s options.”
“To have a nation, you have to have commerce between, around and across states. There are limitations on what one state can do that then would make them the regulator of the nation, so to speak,” said Wrigley [Ken Duffy, “North Dakota AG ‘Examining All Possibilities’ Concerning Legal Options over South Dakota’s CO2 Pipeline Eminent Domain Law,” WZFG Radio, 2025.09.18].
If he pulls the trigger, Wrigley’s going to lose this case.
First, on eminent domain, South Dakota didn’t change the United States Constitution with HB 1052 (now SDCL 49-7-13.1). The federal government can still exercise its Fifth Amendment authority to take land in South Dakota with just compensation to build projects for public purposes. But the federal government has not come knocking to build a carbon dioxide pipeline across South Dakota. A private company, Summit Carbon Solutions, wants to build this pipeline, and they’ve sought to use South Dakota’s eminent domain provision (SD Constitution Article 6 Section 13) common-carrier law (Chapter 49-7) to take land for its private project. South Dakota defines common carriers for the purposes of eminent domain, and via HB 1052, South Dakota has chosen to exclude carbon dioxide pipelines from that definition. There’s no Fifth Amendment question for Wrigley to challenge; South Dakota has every right to decide what projects constitute a public use warranting forced surrender of private property within its borders.
Second, the Commerce Clause doesn’t conflict with, let alone serve as grounds for overriding, HB 1052. The Commerce Clause protects your ability to do business. HB 1052 doesn’t stop Summit Carbon Solutions from buying any land from any willing landowner. It does not stop any landowner from selling land to any interested carbon pipeliner. It certainly does not stop North Dakota’s oil interests (and Big Oil is keenly interested in the carbon credits they’d get for storing Summit’s CO2, and A.G. Wrigley was speaking at Big Oil’s big conference in North Dakota this week) from selling storage space in their fracked oil fields. Nor does HB 1052 stop Summit or any other eager entrepreneur from selling the service of collecting CO2 from industrial facilities and transporting it by pipeline, train, truck, or zero-emission zeppelin. HB 1052 lets carbon traders do all the commerce they want; it just says South Dakota won’t step in and seize private land from uncooperative owners to help them do their commerce.
Again, the Commerce Clause protects your right to do business. The Commerce Clause does not compel anyone to do business. Specifically, North Dakota can’t use the Commerce Clause to force South Dakota farmers to sell their land to an Iowa pipeline company so North Dakota oil producers can make money storing CO2.
Go ahead, Attorney General Wrigley, do your legal research. You’ll find you don’t want to take South Dakota to court over HB 1052 and how South Dakota chooses to apply eminent domain.