by Allan Stein via The Epoch Times (emphasis ours),
MELLETTE, S.D.—On their way to attend their niece’s wedding in July 2021, fourth-generation farmer Ed Fischbach of Mellette, South Dakota, and his wife made a quick stop to check the mailbox.
His wife reached inside, pulling out a handful of letters. Within the small pile was an envelope from a company she had never heard of—Summit Carbon Solutions.
She opened the letter and began reading it.
“Dear landowner,” the letter began innocently enough. But as she continued reading, her jaw nearly dropped.
“Listen to this,” she told her husband.
The Iowa-based company described plans to build a massive carbon capture pipeline across five midwestern states in the letter.
The 1,400-mile pipeline would transport carbon dioxide under high pressure, produced by ethanol and biofuel refineries, for burial in North Dakota. The goal would be to reduce the region’s carbon footprint to protect the environment.
The Fischbachs then learned that the pipeline would travel through some of the most productive areas of the 1,400-acre property that has been in their family for decades.
“The proposed pipeline route for the project is depicted on the enclosed map,” the letter continued, “and public records indicate that you are the record taxpayer of all or certain portions of the property.”
The notice further advised that Summit Carbon, through its consultant, TRC Companies, would perform preliminary surveys in the weeks ahead.
But first, the company needed permission to go on the property. Ed Fischbach said he never filled out or returned the enclosed approval form.
Instead, he made phone calls and soon realized other landowners in Spink County had received the same letter, including his nephew Brad, who raises beef cattle for a living.
“Who is this outfit? Nobody heard about it,” Fischbach said. “I decided I’m not going to stand for this. Somebody had to do something about it. I took the lead.”
In August 2021, Fischbach called a meeting at the local community center, expecting a dozen people to attend.
Without advertising, 74 landowners turned out. None of them supported the project in South Dakota, he said.
“I said to myself. I’m onto something here. This is real. We have to pursue this,” Fischbach told The Epoch Times.
Opposition Builds
Fischbach said that soon afterward, Summit Carbon held a catered public meeting to unveil the project.
About 300 people showed up for the event, Fischbach recalled. Summit officials spoke and held a slide show on the project’s economic and environmental benefits.
There were questions asked and answered, as well as comments from the public. Fischbach said he was the first to take the microphone.
“My first question to them was, ‘Would you commit today not to use eminent domain on those of us that don’t want your project?'”
After repeated attempts, Summit Carbon officials would not answer “yes” or “no”, Fischbach said.
Finally, a company official said, “No, I cannot do that,” he said.
“It just set off a chain reaction. Nobody wanted this thing. They ended the meeting,” said Fischbach, leader of the South Dakota Easement Team opposed to the company’s attempts to acquire right-of-way easements by eminent domain to build the pipeline.
Since the July 2021 letter, Summit Carbon has filed more than 81 eminent domain lawsuits in 10 South Dakota counties against farmers who refuse to voluntarily sign easement agreements with the company.
“They’re trying to intimidate people,” Fischbach said. “They’re doing this with no permit. That’s what’s upsetting.”
“We have a trespass law in this state. It doesn’t mean anything because they’re out surveying people. The company has armed security guards on your property to keep you away from the surveyors. We’ve got pictures of them. They’re bringing this in without authorization.”
Summit Carbon is suing one McPherson County couple to take, acquire, or appropriate property to allow a temporary or permanent easement, “which has been authorized by statute for public use,” according to the petition.
The couple had 30 days to respond to the petition or face a jury to “ascertain the just compensation for the property proposed to be taken or damaged.”
In a statement to Forum News Service, Jesse Harris, the director of public affairs for Summit Carbon, said the lawsuits are the next step when “negotiating in good faith” fails to produce results.
“We look forward to continuing to work with regulators, policymakers, landowners, and more to advance this critical investment in our economy,” Harris told the news service.
South Dakota Rep. Karla Lems, a Republican, said the pipeline project takes advantage of legal loopholes in the state’s eminent domain law (SDL 49-7-11) which states, “Any pipeline companies owning a pipeline which is a common carrier as defined by 49-7-11 may exercise the right of eminent domain in acquiring right-of-way as prescribed by statute.”
Summit Carbon filed a project permit with South Dakota’s Public Utilities Commission, which will decide in September whether to allow the pipeline to move forward or not. Four other states considering the pipeline include Iowa, Nebraska, Minnesota, and North Dakota.
Summit Carbon Responds
Summit Carbon spokeswoman Courtney Ryan countered claims of widespread opposition to the pipeline, citing an “overwhelming majority” of landowners along the proposed route that have signed easement agreements to support and advance the project.
“To date, 2,800 landowners have signed 4,520 easement agreements accounting for 1,410 miles of our proposed pipeline route and 135,000 acres of our proposed sequestration site,” Ryan told The Epoch Times.
“For an easy comparison, the Dakota Access pipeline [the most recent major pipeline project in the Midwest] is 1,172 total miles. In other words, the number of easement agreements we’ve already secured exceeds the mileage of that project.”
Ryan said the “short answer” is that CO2 has been utilized for years as a commodity and Summit Carbon Solutions is a common carrier.
Approximately 230 million metric tons of CO2 are used every year with fertilizer serving as the largest consumer, she said.
“Other uses include other commercial and industrial applications, which include food and beverage production, metal fabrication, cooling, fire suppression, and stimulating plant growth in greenhouses. Emerging uses include construction materials, industrial gas and fluids, fuel, polymers, chemicals, and more.
“In every South Dakota county where our project is located, the company will invest $45 million on average to help generate economic growth. In those same counties, Summit will pay an average of $650,000 in new property taxes,” Ryan said.
Ryan added there are 3.3 million miles of pipeline in operation in the United States, including 12,000 in South Dakota alone.
The Summit Carbon system includes carbon capture, transportation, and storage, utilizing long-standing technology that is “safe, reliable, and proven to be safe for landowners and community,” Ryan said.
In addition, the company will maintain an operations center round the clock in Ames, South Dakota, that will monitor for leaks and any changes in the system.
Carrot Versus Armed Guards?
In the meantime, Lems said the company appears to have the right to conduct land surveys on private property within the proposed construction area with 30 days’ notice.
However, she said in many cases, those surveys have been “invasive” and, in some instances, accompanied by armed guards.
“They say they’re using the carrot—we’re going to give you so much for your land,” Lems told The Epoch Times. “On the other hand, they’re holding a gun, saying if you don’t do this, we will take your property.”
Lems was the lead sponsor of House Bill 1133 which sought to define a “commodity for the purpose of qualifying as a common carrier.”
“A common carrier is a person or a commercial enterprise that transports passengers or goods for a fee and establishes that their service is open to the general public,” according to LII, a nonprofit legal publishing group based at Cornell Law School in Ithaca, New York.
“A private carrier, on the other hand, is a person or a commercial enterprise that only agrees in particular circumstances to transport passengers or good. Private carriers differ from common carriers because they don’t establish that their service is open to the general public.”
HB1133 held that “a company transporting carbon dioxide, by pipeline, is not a common carrier.”
“We need to redefine commodity,” Lems said. “This is not even a permitted project in our state. And yet they can come in and by the power of eminent domain serve condemnation on these people.”
The bill passed in the House but died in a Senate committee. Similar measures in North Dakota and Iowa also failed, she said.
“It looks to me like a boondoggle,” Lems said. “It just looks to us like the skids have been greased. Everything is lined up for several years.
“You can slice and dice laws so they fit your project. You get the right people on board to push it through. Again, follow the money.”
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