Sen. Mark Lapka, R-Leola, speaks on the South Dakota Senate floor on March 4, 2025. (Photo by Makenzie Huber/South Dakota Searchlight)
A four-year controversy that has shaken South Dakota’s Republican political establishment culminated Tuesday in the Legislature’s passage of a ban on eminent domain for carbon dioxide pipelines.
The state Senate voted 23-12 to approve the bill, which previously passed the House, and sent it to Republican Gov. Larry Rhoden for his signature or veto. He declined to state his position on the bill during recent press conferences. His spokeswoman issued a statement Tuesday in response to a question from South Dakota Searchlight.
“Governor Rhoden is committed to protecting landowner rights and keeping South Dakota Open for Opportunity,” the statement said. “He has a wealth of knowledge on both eminent domain and property rights issues, and he is well aware of all the arguments in this discussion. He will be carefully considering this bill in the coming days.”
The legislation would prohibit carbon pipeline companies from acquiring land by eminent domain. That’s the right to access private property for projects that benefit the public, with just compensation determined by a court. Eminent domain is commonly used for projects such as electrical power lines, water pipelines, oil pipelines and highways
Sen. Tom Pischke, R-Dell Rapids, supported the bill. He called it a response to an outcry from landowners.
“Private companies should not be able to take South Dakotans’ land against their will,” Pischke said.
Sen. Mark Lapka, R-Leola, also supported the legislation.
“I don’t want to see us go down a path where eminent domain becomes a way of doing business,” he said.
Lapka owns land near the proposed route of Iowa-based Summit Carbon Solutions’ $9 billion pipeline. So does the bill’s main House sponsor, Rep. Karla Lems, R-Canton.
The pipeline would transport carbon dioxide from more than 50 ethanol plants in five states, including eastern South Dakota, to an underground storage site in North Dakota. The project would qualify for billions in federal tax credits incentivizing the sequestration of heat-trapping greenhouse gas emissions.
Summit issued a statement after the bill’s passage Tuesday.
“Summit Carbon Solutions has been inclusive — signing easement agreements with more than 500 landowners, working with nearly every ethanol plant, and ensuring economic benefits for farmers and ethanol producers in the upper Midwest,” the statement said, in part.
The company went on to label its project as important to “American energy dominance” and said “South Dakota should be part of that future.”
Private companies should not be able to take South Dakotans’ land against their will.
– State Sen. Tom Pischke, R-Dell Rapids
Summit was denied a permit by South Dakota’s Public Utilities Commission 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 some adjustments to its route and reapplied, and that application is pending.
The project has received permits in Iowa, Minnesota and North Dakota, while Nebraska does not have a permitting process, and some of the permits have been challenged in court. Iowa’s permit requires that the project also receive approval in South Dakota and North Dakota before construction begins.
Lapka and Lems are among the legislators who were motivated to run for office by their opposition to Summit’s potential use of eminent domain. The company has voluntary agreements called easements with some landowners but will likely need eminent domain to complete its project. Summit’s eligibility to use eminent domain in South Dakota is being challenged in court.
Since Summit announced its plan in 2021, a politically diverse grassroots movement has formed across South Dakota to oppose it, mixing everything from Republican climate change deniers to Democrats concerned about the fate of family farms.
Last year, after state lawmakers passed legislation placing new restrictions on carbon pipelines and implementing new protections for landowners and counties — without banning the use of eminent domain — opponents petitioned the legislation to the ballot and defeated it. They also helped to oust 14 Republican incumbent legislators in last June’s primary.
The new makeup of this year’s Legislature, with more pipeline critics and some of them elevated to leadership positions, made the passage of the eminent domain ban likely.
Supporters of the bill said it’s necessary to protect landowners from having their property accessed and developed by a private corporation against their will. The bill’s opponents said it could harm the ethanol industry, which is seeking ways to lower its carbon footprint as some states and countries limit sales of carbon-intensive fuels.
Yet carbon dioxide can also be injected into old oil wells — such as in North Dakota’s Bakken oil fields — to bring more oil to the surface, leading some critics of carbon sequestration to label it as a boondoggle ultimately benefiting oil companies.
Change is ‘eminent’: Property-rights fight transforms this year’s SD Legislature
One legislator invoked that possibility as a positive, and a reason to oppose the eminent domain ban.
“Governor [Kelly] Armstrong is talking about how this has the potential for us to retrieve the remaining oil that’s left in the Bakken,” said Sen. Casey Crabtree, R-Madison, in reference to North Dakota’s governor.
According to reporting by the North Dakota Monitor, Armstrong recently called for policies that promote using carbon dioxide to enhance oil recovery in the Bakken.
Sen. David Wheeler, R-Huron, also opposed the bill. He said it unfairly singles out one type of project. He introduced a failed amendment to allow carbon pipeline companies to use eminent domain if they first obtain agreements with 75% of affected landowners.
“Eminent domain has existed since the country was founded,” Wheeler said. “And we determined, long ago, that public use includes development that goes across the states.”
Senate Majority Leader Jim Mehlhaff, R-Pierre, was one of the most vocal critics of the bill.
“It tells developers that South Dakota is not open for business,” he said. “It tells them that if enough people get together and raise enough ruckus, they can get enough senators elected and House members elected that they’ll come to Pierre and cut the legs off your project.”
Other bills targeting carbon pipelines were heard in the Senate State Affairs Committee later Tuesday. The committee voted 5-4 to reject legislation that would place a moratorium on carbon pipeline permits until new federal safety regulations for the projects are finalized. The committee voted 5-4 to advance a bill that would empower landowners to sue for alleged deception, fraud, harassment, intimidation or misrepresentation by pipeline land agents.
South Dakota Searchlight’s Seth Tupper and Makenzie Huber contributed to this report.