SIOUX FALLS, S.D. (KELO) — Summit Carbon Solutions can do surveys on the property of landowners whose land may be used for a proposed carbon dioxide pipeline in areas of South Dakota.

The summary judgment was issued by Judge Richard Sommers in the 8th circuit on April 21. It’s a judgment on a civil lawsuit filed by landowners in Brown, Edmunds, McPherson and Spink Counties in 2022.

The state’s Public Utilities Commission (PUC) is scheduled to decide on Summit Carbon’s pipeline permit application in September.

Landowner Roger Feickert summed up the judge’s decision like this: Summit can walk onto his land anytime it wants to even if he didn’t give them permission.

Permission is tied to the surveys but it’s also tied the issue of eminent domain.

Summit Carbon recently filed multiple lawsuits in multiple counties in the state on eminent domain. Summit Carbon wants to use eminent domain to secure property on which to locate its pipeline. Generally, eminent domain would be used on property for which the company and landowner did not agree on a price for use.

“What that all boils down to is taking our land,” Feickert said of eminent domain. He’s been named in one of the eminent domain lawsuits.

Sommers wrote in his survey summary judgment that the landowners or those associated with them cannot interfere with surveying being conducted by Summit Carbon Transport LLC (Summit Carbon Solutions.)

Summit Carbon has contended it needs access to survey land to help determine the route of its proposed roughly 2,000 mile CO2 pipeline.

Eminent domain as it applies to commodities and CO2 is one of the core issues of the pipeline discussion.

On Feb. 9, a bill that could have prohibited two carbon dioxide (CO2) pipelines from using eminent domain in South Dakota passed the full House. The same bill failed in the Senate Commerce and Energy Committee on Feb. 16.

House supporters said the CO2 was not a commodity because it would be captured and buried in the ground. Republican Rep. Scott Moore said in the House on Feb. 9 that CO2 pumped into the ground “never to be used again” is not a commodity.

“CO2 is a commodity and me trying to say different doesn’t make it so,” Democrat and committee member Sen. Reynold Nesiba said on Feb. 16 during Senate Commerce and Energy Committee.

The proposed CO2 pipeline would travel across several states including South Dakota and Iowa. About 470 miles will travel through South Dakota on its way to a burial or sequestered site in North Dakota.

CO2 will be captured at various ethanol plants in several states.

Feickert said the CO2 in the pipeline is not a commodity, not like natural gas or power lines. The state law that would allow it to be considered a commodity is flawed, Feickert said.

Supporters of the CO2 pipeline say it will be an economic benefit for ethanol plants and agriculture. CO2 is produced in the processing at ethanol plants and counts against its carbon footprint. The pipeline would capture the CO2 and reduce the carbon output from ethanol plants, which makes the ethanol more attractive to states such as California that have strict low carbon standards.

Opponents are against the ability for Summit to survey their land without permission. Another concern is the safety of a CO2 pipeline. There are health risks if there is a leak or crack in the pipeline, opponents have said.

Although landowners have united against the proposed CO2 project in South Dakota, the number of easement agreements has continued to grow, according to Summit announcements.

In November of 2022, Summit announced it had secured easements for more than 50% of the land in the route in South Dakota. In March, it said it had secured 70% of the needed easements in North Dakota. In February, it announced it had secured 60% of the needed land easements project wide and two thirds of the needed easements in Iowa.

Feickert knows that landowners are agreeing to easements. “It’s not like they aren’t offering generous money,” he said.

But money isn’t the determining factor for him, Feickert said.

“It’s not a matter of money, it’s the principle,” Feickert said. He owns the land and he should decide if he wants to participate in the project.

It’s not a project he can support because it uses tax credit and to him, tax money to support a private project.

Section 45Q allows companies to use tax credits for sequestered CO2. The program has existed since 2008. The program was expanded in 2022. It is an incentive to reduce the carbon footprint of companies and overall in the U.S.

Although the plan for now is to bury captured CO2, representatives of Navigator and Summit said there are other uses such as in concrete, bioplastic and others. CO2 is also dry ice.

The U.S. Department of Agriculture said that high levels of CO2 exposure can cause rapid breathing, confusion, increased cardiac output and other symptoms. Breathing oxygen depleted air caused by extreme CO2 concentrations can lead to death by suffocation, according to the USDA.

The material in a natural gas pipeline is transported in pipelines that are roughly six to 48 inches in diameter at a pound per square inch of 200 to 1,500 PSI.

CO2 is transported in pipelines from about 1,300 to 2,100 PSI. Also water is a material that can be contained in CO2.

Research on high pressure liquid C02 pipelines cite the need for pipelines to be resistant to corrosion and the necessity of eliminating as much water as possible in the process.