Reversing circuit courts, the South Dakota Supreme Court found that it was premature to determine that the developer of a planned pipeline network to transport carbon dioxide (CO2) to a carbon sequestration site in North Dakota was a common carrier with the power of eminent domain. The court found that the record did not demonstrate as a matter of law that the developer—SCS Carbon Transport, LLC (SCS)—was holding itself out to the general public as transporting a commodity for hire. The court said that factual disputes remained, including as to whether SCS took ownership of the carbon dioxide to be transported (and would thus be a private carrier). The court found, moreover, that the existing record suggested that “CO2 is being shipped and sequestered underground with no apparent productive use” and therefore would not qualify as a commodity. The court noted SCS’s argument that stored CO2 has value because of carbon-offset markets and federal subsidies. The court further noted that the record suggested “the economic item of value at play here may be the tax credit generated by the sequestration of the CO2, a determination which is driven by federal energy policies.” The court also noted that legislatures in other states had been responsible for policy decisions that CO2 was a commodity due to its potential industrial applications. The court said it was “unwilling to make such a significant determination” here based on the undeveloped record, “particularly one that is heavily bound up in policy considerations.” In addition to its decision regarding the common carrier questions, the court found that the South Dakota landowners who challenged the developer’s exercise of eminent domain powers were entitled to discovery. The court also found that a South Dakota law that authorized pre-condemnation surveys should be narrowly construed to permit “only minimally invasive superficial inspections” and that the law, if narrowly construed, would not violate federal or state constitutions.

Lawsuit brought by landowners in path of carbon dioxide pipeline to prevent pre-condemnation surveys.

Betty Jean Strom Trust v. SCS Carbon Transport, LLC

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

South Dakota High Court Questioned Whether Sequestered Carbon Dioxide Had Productive Use

Filed

United States of America

South Dakota

The Climate Litigation Database

Find climate change litigation data and indicators for {text}.

{text} litigation

Sabin Center for Climate Change Law provides Climate Litigation Database, a comprehensive database of US and Global climate change caselaw

Quickly and easily search through the complete text of thousands of climate change law and policy documents from every country.

Search the Climate Litigation Database

An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A tax advantage is a fiscal incentive where the government reduces or exempts selected activities, goods or actors from taxes.

A subsidy is a direct or indirect payment to individuals or businesses, typically provided as a government cash payment or a specific tax reduction.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Actions or measures to adapt terrestrial systems to climate change.

Actions or measures to adapt freshwater systems to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Replacing technologies that burn fossil fuels directly with alternatives powered by electricity.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

The activities of industries that transforms raw materials into finished goods through industrial processes.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves activities to move goods and people, alongside the storage of products.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

South Dakota High Court Questioned Whether Sequestered Carbon Dioxide Had Productive Use

Policy instrument

Risk

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance