PIERRE, S.D. — As lawmakers made their way to their respective caucus meetings on the afternoon of Jan. 18, they were greeted with an unfamiliar sight on the fourth floor of the State Capitol.
About a dozen landowners, joined in their opposition to planned carbon pipelines across eastern South Dakota, were waiting for lawmakers, encouraging them to support legislation that would stop — or at least delay — the pipeline companies promising a future for the state’s ethanol industry through lowered carbon emissions.
“I always think back to how [my grandparents] worked so hard so that we could have food and grain and hay and cattle. They came over with nothing,” Cynthia Schock, a 76-year-old landowner with roots in McPherson County, said. “And so it is important for us that have had it handed down for four, five generations to keep that going in. It’s an inheritance.”
Throughout the day, some 50 landowners-turned-lobbyists from around the state took turns talking to lawmakers and among themselves, figuring out how they could move legislation in several different areas related to pipeline safety and construction.
But what these landowners — and several first-year lawmakers who earned their spot in the legislature largely because of landowner discontent — have in energy and numbers, they somewhat lack in connections, which the two companies currently working to build a pipeline in the state, Summit Carbon Solutions and Navigator CO2, have in spades.
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“They have millions and millions of dollars behind them. We can't counter that. We're here. We're countering their money with people,” Ed Fischbach, a landowner from Mellette, said. “And I guess we expect our legislators to respect and listen to the people that put them here.”
But Summit Carbon Solutions, planning to build some 2,000 miles of pipeline across the Midwest, sees the participation of these landowners differently.
“Given this strong and growing support across the state, it’s not surprising project opponents continue to try to invent distractions in their attempts to prevent essential investments in the state’s infrastructure, even those that will create jobs and grow our economy,” Summit Carbon Solutions wrote to Forum News Service in a statement. “We look forward to continuing to work with landowners, stakeholders, and policymakers to advance our nearly $800 million investment in South Dakota's future."
Legislation emerges targeting pipelines, eminent domain
The issue of whether these carbon pipeline companies can access eminent domain — a concern that has led to record participation in the ongoing permit proceedings before the state’s Public Utilities Commission — always figured to take on some prominence during the 2023 legislative session.
Just days into the second week of session, two bills related to the pipeline issue have now been submitted to the public record.
Rep. Karla Lems, a freshman legislator representing counties in the shadow of the Summit and Navigator pipelines, has sponsored a bill that would define the requirements for use of eminent domain as “for the public use,” contrasting water systems or natural gas pipelines with projects like carbon pipelines she says do not help South Dakotans as directly.
“It's definitely an uphill battle. They have the money, they have the resources, they have the lawyers, they have the connections,” Lems said. “But the issue is who can come in and take private property. And, in the end, it's not for public use.”
The bill carries eight co-sponsors in the House but no sponsors in the Senate.
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In addition, Rep. James Wangsness of Miller, another newly-elected legislator representing several pipeline counties, has introduced a bill changing certain requirements on the controversial topic of land surveying.
Though some landowners may have wanted pre-permit surveys by pipeline companies eliminated completely, this legislation instead requires a $500 compensation for entry and the requirement of thirty days' notice prior to entry, including the name and contact of the person who will enter the property.
“That's part of the PUC, they need certain information to be able to do their permitting process. So that's where that all kind of comes from. But there has to be a positive notification,” Wangsness told Forum News Service. “And then the fee to enter the land is so that you're getting compensated for somebody coming on your land for the survey.”
The two proposals are a beginning, not an end, several legislators say.
One piece of legislation expected to appear in the coming days and weeks from Rep. John Sjaarda, a farmer and new legislator from Valley Springs, includes a requirement that companies accessing eminent domain must reach an easement agreement with 80% of landowners on the route.
Summit Carbon says they have secured easements from 56% of landowners along the planned route in South Dakota.
Another idea might target pipeline safety, such as a moratorium on carbon pipeline construction until new rules from the Pipeline and Hazardous Materials Safety Administration have been released.
Way forward depends on unlikely legislative coalition
In the House, a group of Democrats, conservative Republicans opposed to the taxpayer dollars funding these pipelines and more moderate Republican legislators on the proposed pipeline routes should be enough to move several pieces of pipeline-related legislation to the other side of the State Capitol.
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However, once in the Senate the margins get more uneasy, and landowners will have to make the case that their worries of damaged farmland and uncertainty around safety precautions outweigh the promise of progress for the state’s key ethanol industry and the farmers it supports.
“Property rights, and especially the right to exclude, is fundamental to our rights as Americans,” Rep. Jon Hansen of Dell Rapids said. “There should be broad consensus for landowner rights in this legislature.”
Beyond that, landowners expressed disappointment at Gov. Kristi Noem, who they say has dodged several meeting requests on the subject. Ian Fury, the chief of communications for Noem, did not comment on the specifics of the proposed legislation but said the governor would “review any bill the legislature sends to her desk.”
“We know what we're up against. And we're continuing to fight,” Fischbach said. “We were trying to get something done last year, and we couldn't get anything put in. Well, this year is a different year. The momentum is on our side.”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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