LINCOLN, Neb. (DTN) -- The North Dakota Supreme Court on Thursday ruled Summit Carbon Solutions has the right to enter private lands to conduct surveys and examinations in preparation for the construction of a segment of a Midwest carbon pipeline in the state. The ruling followed an appeal filed by a group of landowners.
As part of a lawsuit filed by Summit against property owners, a district court in North Dakota granted a motion for summary judgment to Summit to allow it to enter private lands in the state. A group of landowners appealed the ruling to the state's highest court.
The district court ruled the state's entry statute does not "constitute an unconstitutional per se taking" of land or property. The court also ruled Summit was a "common carrier" that is "authorized to exercise eminent domain."
The North Dakota Supreme Court on Thursday affirmed the district court's judgement.
"We conclude the judgments do not expressly authorize any actions beyond the statute, and the statute does not authorize entry beyond the historical background principles of our property law," the court said in its 15-page opinion.
The ethanol industry is expected to play a large role as a feedstock provider in the production of sustainable aviation fuel, or SAF, so long as the ethanol industry can improve its carbon intensity score. That's why carbon capture and storage are important.
Generally, carbon pipelines connected to ethanol plants are seen as the only viable way to reduce carbon emissions low enough to attract SAF producers to using ethanol as a feedstock.
There is potential for another wave of economic expansion in rural communities similar to the early days of the Renewable Fuel Standard starting in 2005 if ethanol producers can become part of the SAF expansion.
The proposed Summit pipeline continues to face regulatory hurdles before construction can begin in Iowa, South Dakota, North Dakota, Minnesota and Nebraska.
The landowners in the case argued that Summit entering their properties constituted an unconstitutional taking because it has "no limitations on assignment or transfer and this right does not expire."
The North Dakota Supreme Court said it disagreed with the argument, and no matter how the entry statute is read, the district court's judgment did not grant "perpetual authority" for Summit to enter private property.
The court said it agreed with the district court in its conclusion that "if the examinations were conducted as proposed, they would not constitute an impermissible physical invasion."
The court said the district court's order did not grant the "functional equivalent" of an easement, either temporary or permanent.
"At this time, and on this record, we can only speculate whether Summit's entry onto landowners' property ultimately exceeds the limited scope permitted by the statute and the constitutional protections against uncompensated takings," the North Dakota Supreme Court said.
"Nothing we say here forecloses further proceedings if Summit enters the land and it is 'damaged' within the meaning of art, unnecessarily and unreasonably interferes with its ordinary use, or continues to occupy the land beyond the time reasonably needed to complete its examinations, surveys and maps."
Read more on DTN:
"Summit CEO: CO2 Pipeline's Time is Now," https://www.dtnpf.com/…
"Carbon Pipeline Hearings in Iowa," https://www.dtnpf.com/…
"Poet to Add 17 Plants to CO2 Pipeline," https://www.dtnpf.com/…
Todd Neeley can be reached at todd.neeley@dtn.com
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