Session 2023 – Legislative Report Week #5
As week five progressed, it was apparent that one of the most charged issues of this session was coming to the House floor at the end of the week. HB 1133 is legislation that would disallow the use of eminent domain for carbon capture projects. To review, eminent domain authority is when a company can force you to sell or allow access to your property for public interest ventures. I am sure most of you are aware of a pipeline company currently attempting to get easements from South Dakota landowners so they can construct a pipeline that would move liquified carbon dioxide to an underground storage facility in North Dakota. This for-profit company would capture carbon dioxide emissions from area Ethanol plants that use fossil fuels in the processing of corn yielding a fuel and other valuable by-products and then pump the liquified product through the pipeline to its storage destination. Currently the CO2 escapes into the atmosphere.
Although the plan and purpose of this project has many advantages for the agriculture industry, the environment, and the long-term viability of ethanol plants in our State, not every landowner in the path of the project desires a pipeline to be placed on their property. For some landowners, the concern about the safety of the pipeline, the interference on their property rights, and the loss of usable farm and ranch land are very real and personal. And the threatened use of eminent domain by a for-profit company so as to gain access to their property is unacceptable.
Certainly, many property owners along the proposed route see buried pipelines as safe and unobtrusive. They view the easement payment, received from the pipeline company, as a welcome bonus.
Current South Dakota laws, for companies doing this kind of commerce, are important components to discus. The pipeline company has eminent domain authority because of their intent of transporting a commodity as it is, “an article of trade for an economic good.” However, HB 1133 redefines CO2 that is being disposed of in a geological storage (known as sequestered) as not being a commodity.
So, there you have it, the ageless debate of landowner’s rights versus some debatable degree of progress. It’s not a comfortable place for a legislator, as there are many impassioned opinions on both sides and good reasons to push the “yea” button, furthering the new legislation in our law-making process or the “nay” button, determining that it should not move forward.
Although HB 1133 passed the House floor, I did not vote for it. For me the determining factor was that this for-profit company entered business friendly South Dakota, proposed it’s business plan, hosted many informational events, obeyed every law and rule, made every appropriate application, and has signed agreements (easements) with over 60% of the property owners on the project route. Although they have not been perfect in early negotiations with landowners, I could not vote to change the rules jeopardizing our state’s integrity of honoring our existing laws and rules. Should we need to change our laws on zoning, permits, eminent domain, fees, and taxes, it should be for future endeavors and not current projects in progress.
Thank you for the opportunity to serve District 24 and have a great week.