South Dakota High Court Rejects Eminent Domain Power for CCUS Pipeline

The South Dakota Supreme Court placed another roadblock on a hotly contested carbon capture pipeline when it refused to hear an appeal from Summit Carbon Solutions, the company behind the project.

Last March, the Supreme Court considered Summit’s arguments that CO₂—captured and stored permanently underground—qualified as a commodity and that eminent domain could be used to transport the gas.

On Aug. 21, the court released its opinion that Summit’s arguments were not convincing and that the company had not done enough at the lower court level to show it was a “common carrier” for a commodity.

“It is thus premature to conclude that (Summit Carbon Solutions) is a common carrier, especially where the record before us suggests that CO₂ is being shipped and sequestered underground with no apparent productive use,” the court wrote in its opinion.

Summit requested to argue against the Supreme Court’s ruling. The South Dakota justices refused the rehearing, South Dakota News Now reported Oct. 22. The case now heads back to a lower court for argument.

Summit Carbon Solutions plans to build a CO₂ pipeline gathering system connected to ethanol plants in a five-state area. The greenhouse gas would be stored underground in North Dakota. The project has run into legal opposition in each state within the proposed network.