Summit seeks pause in pipeline permitting after SD limits eminent domain

By Joshua Haiar, South Dakota Searchlight

Summit Carbon Solutions wants the schedule of proceedings for its South Dakota permit application “paused for review and adjustment” after the state’s Legislature and governor approved a ban on the use of eminent domain for carbon dioxide pipelines.

The company filed a motion Wednesday, March 12, with the South Dakota Public Utilities Commission asking for a suspension of the scheduling order and an indefinite extension of the deadline for regulatory action on the application. The existing schedule includes a multiday evidentiary hearing in August and September.

Summit cited House Bill 1052, signed last week by Republican Gov. Larry Rhoden, as a significant obstacle to completing land surveys along the pipeline’s planned route.

“With the passage of HB 1052, the Applicant’s ability to obtain survey permission has changed,” wrote Summit attorney Brett Koenecke. “The surveys which are necessarily required to inform the route decisions as to right of way will be significantly delayed.”

Eminent domain is a legal process for acquiring access to land for projects that have a public benefit, with compensation for landowners determined by a court. It’s commonly used for projects such as electrical power lines, water pipelines, oil pipelines and highways.

The ban has been hailed as a victory by some landowners who have resisted Iowa-based Summit’s proposed $9 billion carbon capture pipeline. The project would transport carbon dioxide emissions from dozens of ethanol plants in five states, including Iowa, to an underground storage site in North Dakota. It would qualify for billions in federal tax credits incentivizing the sequestration of heat-trapping greenhouse gas emissions.

The project has permits in other states, although some are being challenged in court. South Dakota regulators rejected Summit’s first application in 2023, largely due to the route’s conflicts with local ordinances that mandate minimum distances between pipelines and existing features. The company has since made adjustments to its route and reapplied.

Critics of the project are interpreting Summit’s motion as another victory for the opposition.

“This request for extension is a clear sign that Summit knows they have lost the trust of South Dakota, and will be unable to proceed on their original timeline without being able to force surveys on unwilling landowners,” said Chase Jensen, of Dakota Rural Action, in a statement.

Rhoden, a longtime advocate for property rights, described the ban last week as a way to restore trust between landowners and developers. Summit issued a statement last week criticizing the ban as unfairly targeting its project and said “all options are on the table” when asked if it was considering legal action.

Summit did not immediately respond to South Dakota Searchlight’s requests for comment Wednesday.

The company is not the first to encounter trouble earning a permit for a carbon capture pipeline in South Dakota. Navigator CO2 canceled its $3 billion project in October 2023, citing the “unpredictable nature of the regulatory and government processes involved, particularly in South Dakota and Iowa.” South Dakota regulators had denied Navigator’s permit application a month earlier.

Iowa and North Dakota regulators have granted permits to the Summit project. Iowa’s permit stipulates that construction may not begin until the project gains permits in both North and South Dakota.

— This story was published by South Dakota Searchlight, which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. South Dakota Searchlight maintains editorial independence. Contact Editor Seth Tupper for questions: info@southdakotasearchlight.com. Distributed by Iowa Capital Dispatch, also part of States Newsroom.