Referendum on Carbon Pipeline Law Validated for November Election

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July 12, 2024
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by Makenzie Huber (South Dakota Searchlight) A seventh ballot question has been validated by the Secretary of State’s Office for the Nov. 5 general election. The referendum asks voters to consider a recently adopted state law concerning carbon dioxide pipeline restrictions and landowner rights.

Based on a random sample of signatures, the office estimated that 92% percent of the more than 34,000 signatures on the petition are from South Dakota registered voters, which means the estimated number of valid signatures is 31,432. The petition needed 17,508 to qualify for the election.

Opponents of the law want voters to reject Senate Bill 201, which the Legislature and Gov. Kristi Noem approved last winter. Supporters said the legislation will implement new protections for local governments and landowners while preserving a path forward for pipeline projects. Opponents view it as a capitulation to pipeline companies.

A 30-day window is now open for challenges to the validity of the petition.

The bill came in response to an $8.5 billion pipeline proposed by Summit Carbon Solutions, which is headquartered in Iowa. The pipeline would collect carbon dioxide from 57 ethanol plants in South Dakota and neighboring states and pipe it to North Dakota for underground storage. The project could benefit from federal tax credits that incentivize carbon sequestration to fight climate change. 

The Iowa Utilities Board approved Summit’s project in June. The company announced shortly afterward that it plans to apply again for a permit in South Dakota this month, after the Public Utilities Commission denied its initial application last year. The company’s pipeline application in North Dakota is under consideration, and it still needs an underground storage permit in North Dakota.

The South Dakota denial was partly due to conflicts with county ordinances that require minimum distances known as “setbacks” between pipelines and other features. The project has also faced opposition from some landowners concerned about property rights and safety, including health risks associated with potential leaks.  READ MORE

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Excerpt from DTN Progressive Farmer:  A voter referendum on the regulation of carbon pipelines in South Dakota is pitting landowners against a pipeline project considered a key cog in helping ethanol plants lower their carbon emissions.

Along with everything else on the ballot Nov. 5, voters in South Dakota will vote on Referred Law 21 -- whether to keep or reject a state law, Senate Bill 201, that passed the State Legislature earlier this year.

RL-21 is being closely followed as permit battles over a 2,000-mile carbon pipeline are also tied up in courts and state commissions across five states.

The South Dakota law, if it remains in effect, allows counties to impose a tax on carbon pipelines of $1 per foot. The law also imposes requirements for pipeline setbacks, minimum depth, rules for handling drain tiles, potential leaks and indemnities to landowners. The law also requires the state's Public Utilities Commission to limit counties' authority to set tighter restrictions on pipelines. The law was dubbed by lawmakers as a "landowner bill of rights," but critics dispute that take.

"Our issue is it really strips away the ability for individual landowners to go to their county commissions and plead their case for setbacks and siting and routing plans," said Amanda Radke, a rancher, farmer and writer in Mitchell, South Dakota, who has become a social media advocate for opponents of RL-21 and Senate Bill 201. "The 300 county commissioners in the state of South Dakota would no longer have a voice. It creates a blanket easement for this one company that can be applied county-by-county."

After being passed and signed by Gov. Kristi Noem in March, opponents got 36,000 signatures across every county to put RL-21 on the ballot. A vote in favor of RL-21 would allow Senate Bill 201 to remain enforced. A vote against RL-21 would likely spur the South Dakota Legislature to consider other options.

The driver behind the ballot measure is Summit Carbon Solutions, which has been working for three-plus years to line up construction permits in Iowa, Minnesota, Nebraska, North Dakota and South Dakota. Summit has 57 ethanol plants across the five states lined up to send as much as 12 million metric tons of carbon dioxide to a geological formation in North Dakota where the carbon would be injected into the ground.

Sinking the carbon in the ground could generate as much as $85 a ton for Summit under the 45Q tax credit. For ethanol producers, piping away the carbon rather than emitting it would dramatically lower their carbon intensity scores for producing Sustainable Aviation Fuel or selling biofuels into states that have low-carbon fuel standards.

The South Dakota Public Utilities Commission (PUC) in September 2023 denied Summit's first permit application, stating it would violate state and county ordinances. The PUC at the time indicated Summit could not proceed without overriding county setbacks. Summit immediately announced it would refile, and the PUC is expected to take up the permit sometime next spring. Senate Bill 201 sets standards but also offers a path forward for the project.

CRITICS ORGANIZE

Opponents of Summit's project in multiple states are closely watching the campaign around RL-21. In Iowa last week, landowners waiting for their own Supreme Court hearing were calling South Dakota voters to urge them to vote "no" on the measure.  READ MORE

 

Excerpt from Bloomberg:  Summit firmly denies it would throw in the towel on the roughly 2,500-mile pipeline expected to run through Iowa, Nebraska, Minnesota and the Dakotas if voters throw out the South Dakota law. Proponents of the measure say the long-delayed pipeline is crucial for ensuring corn remains America’s biggest and most profitable farm crop by keeping ethanol in the political conversation as other fuel sources get cleaner.

“If we can add value to our 800 million bushels of corn, the potential impact is massive,” said former South Dakota Agriculture Secretary Walt Bones, who is engaged in talks with Summit for access to his land. “This is a huge opportunity for South Dakota; we need to make it happen.”

The division around the upcoming referendum mirrors wider disagreement over the pipeline itself, which seeks to capture and store carbon spewed from factories making corn-based ethanol. The project is billed as a lifeline for an industry racing to become more climate friendly so it can benefit from new markets like sustainable aviation fuel. That’s especially important with the rise of battery-powered cars expected to slash demand for the corn-based fuel. But a slice of landowners has balked at the project, including a spattering of corn farmers who the pipeline pledges to benefit.

The law up for referendum, known as Referred Law 21, is so divisive that its supporters and critics don’t even call it the same name. Opponents dub it a “Pipeline Bill of Rights,” arguing the measure allows for easier approval. Backers, who want to keep what they’ve dubbed a “Landowner Bill of Rights” on the books, claim it offers valuable protection for residents who end up in negotiations for access to their property, like ensuring they won’t be on the hook if there’s damage to the land.

“It ensures carbon pipeline projects respect landowners while securing the future of ethanol and agriculture in South Dakota,” Summit spokeswoman Sabrina Zenor said in an emailed statement. Whether or not the law is repealed, Summit plans to re-apply for a permit in South Dakota after the state rejected the pipeline’s previous application last year, she said. Iowa announced its initial approval over the summer.

Summit says it continues to talk with landowners and is confident in its ability to work toward more voluntary agreements with property owners. It says about 75% of landowners along the previous route through South Dakota had already signed on, many of whom will also be part of any redrawn pipeline map. Summit has said before that it cannot move forward with the five-state pipeline plan if South Dakota isn’t on board.  READ MORE

 

Excerpt from South Dakota Searchlight:  Money from ethanol producers is clashing with contributions from individuals and farm-and-ranch corporations — plus some funding from national climate activists — in the fight over a carbon-dioxide pipeline law on South Dakota’s Nov. 5 ballot.

Committees supporting the law have raised at least $2.3 million, all from ethanol companies, since their last reports in May, and they’ve spent $1.5 million. Committees opposing the law have raised at least $224,000 and spent over $160,000. Individuals and farm-and-ranch corporations put forth about $150,000 to defeat the bill, making up a majority of the money raised on the vote-no side. 

...

State lawmakers and Gov. Kristi Noem adopted Senate Bill 201 during the last legislative session. Opponents collected over 31,000 petition signatures to put the legislation on the ballot as Referred Law 21. A yes vote supports the law, while a no vote opposes it.

The law includes financial and other protections for landowners and counties affected by pipelines. It also shifts a burden to local governments, requiring them to prove their restrictions on pipelines are reasonable, instead of pipeline companies having to prove them unreasonable.

Proponent finances

A ballot question committee backing the law, Protect South Dakota’s Ag Future, is chaired by former South Dakota Agriculture Secretary Walt Bones. The committee spent $167,000 on advertising using a contribution of that amount from Gevo, a company that hopes to produce ethanol-based aviation fuel in South Dakota. Gevo is backing the law as part of its plans to use carbon capture technology in its production process.  

Another ballot question committee, Vote Yes for a Strong South Dakota, raised $2.2 million from ethanol producers, including $1 million from POET, the Sioux Falls-based world’s largest ethanol company, and $400,000 from Glacial Lakes Energy, an ethanol producer with multiple locations in South Dakota. Another $200,000 came from Gevo. The committee has spent $1.4 million, mostly on ads. 

Opponent finances

Opponents of the law, through the SD Property Rights and Local Control Alliance ballot question committee, raised $189,000. Aside from the individual donations and farm-and-ranch corporation contributions, an additional $27,500 was raised through fundraising events such as silent auctions.

South Dakota Searchlight questioned the committee’s treasurer, Rep. Tina Mulally, R-Rapid City, about the legality of reporting only the amount of the silent auction proceeds without the names of auction buyers. South Dakota requires individual campaign contributions above $100 to be disclosed with the contributor’s name.

“Those silent auctions were for a yard sign, a pie, a print,” Mulally said. “They were all little items. Mostly signs.”

Several county Republican parties donated a combined $4,400. South Dakotans for Safe and Responsible Renewable Energy is one of two political action committees listed as contributing, totaling $2,800; however, no committee by that name is listed on the state campaign finance website. 

Jane Fonda and other national money

Another opponent group, a ballot question committee affiliated with Dakota Rural Action, received its $35,000 in funding from the South Dakota Rural Voters political action committee. It received its funding from two national groups – New World Foundation and Jane Fonda Climate PAC – which support social and climate justice efforts.

Referred Law 21 arose from controversy surrounding Iowa-based Summit Carbon Solutions, which has partnered with ethanol plants in the Midwest — including in eastern South Dakota — to capture CO2 and transport it to North Dakota for underground storage.

The project aims to benefit from federal tax credits for reducing greenhouse gas emissions. Some landowners along the route oppose the pipeline due to concerns about eminent domain — a legal process for gaining access to land from unwilling owners — and potentially hazardous leaks.

Referred Law 21, described as a compromise bill by Republican legislative leaders, does not address eminent domain but includes landowner protections. It requires pipeline companies to cover damages, mandates CO2 pipelines be buried at least 4 feet deep, and compels companies to share rupture modeling data. The law says counties can also collect up to $1 per linear foot of pipeline for property tax relief and road repairs.  READ MORE

 

Excerpt from South Dakota Searchlight:  The measure on South Dakota’s Nov. 5 ballot that addresses carbon dioxide pipelines is either a bill of rights for landowners or a seizure of authority from local governments, depending on the person describing it.

...

The law would implement a list of protections and incentives for landowners and counties impacted by the construction of carbon dioxide pipelines. That’s the “bill of rights” part, according to the law’s supporters.

But it would also require local governments to demonstrate to state regulators that their restrictions on pipeline locations are reasonable, rather than the pipeline company having to prove those regulations are unreasonable. That’s the seizure of local authority, according to the law’s opponents.

The path to the ballot

The genesis of the debate over carbon pipelines is a proposal from Iowa-based Summit Carbon Solutions. It has partnered with ethanol producers, including Sioux Falls-based Poet, to capture some of the CO2 emitted by 57 ethanol plants in several midwestern states — including eastern South Dakota — and send it via pipeline for underground storage in North Dakota. The project would capitalize on federal tax credits that incentivize the prevention of climate-warming greenhouse gas emissions.

...

Some landowners along the pipeline route oppose the project because they don’t want the pipeline under their land. They oppose Summit’s attempted use of eminent domain to gain court-ordered access to their land and are concerned about potentially deadly leaks of carbon dioxide plumes. Similar debates are occurring in other states on the proposed route. Iowa has granted the project a permit, but it’s contingent on approval in the Dakotas, where Summit has not yet obtained permits.

Legislative sponsors of what became Referred Law 21 described it as a compromise between pipeline opponents and supporters, guaranteeing protections and incentives for landowners while maintaining a regulatory path for pipelines. The compromise effort arose after some legislators failed in their efforts to ban eminent domain for carbon pipelines. Referred Law 21 does not address eminent domain.

Another factor in the debate over the legislation was the role of counties. Some county commissions, prodded by pipeline opponents, have passed local ordinances with strict restrictions on the locations of pipelines. 

Under existing law, those local ordinances apply unless the state Public Utilities Commission decides to declare them unreasonably restrictive. If Referred Law 21 takes effect, the burden would flip. Counties would have to prove to the state commission that their ordinances are reasonable. 

The proposed law says that once the state issues a permit for a transmission project such as a pipeline, it automatically overrides any local rules. Local regulations would no longer be applicable unless state regulators require compliance with local laws as part of the permit.

Some proponents of Referred Law 21 say current state law makes it too easy for a local body opposed to a multi-state pipeline project to hold up construction. They say if local officials are confident their regulations are reasonable, they can rest easy knowing state regulators will uphold them.  READ MORE

 

Excerpt from DTN Progressive Farmer: Voters in South Dakota overwhelmingly rejected a state law that would have dictated how counties regulate carbon pipelines in the state.

The vote, which is not finalized was nearly 60% opposed to the law and defeated in all but one county in the state. The referendum, known as Referred Law 21, challenged a law passed by legislators' earlier this year, Senate Bill 201.

That will set back efforts for Summit Carbon Solutions and its plans to build a 2,000-mile carbon pipeline that would capture and ship carbon dioxide emissions from 57 ethanol plants. The plan is to sink the carbon in North Dakota so the pipeline needs to navigate regulations in South Dakota to operate.

Summit issued a statement early Wednesday making it clear the company will re-submit its permit application. The South Dakota Public Utilities Commission had rejected Summit's first permit application in September 2023.

"Summit Carbon Solutions will apply for a permit in South Dakota on Nov. 19, 2024," the company stated. "Our focus continues to be on working with landowners and ensuring the long-term viability of ethanol and agriculture in the state. Projects like ours have successfully navigated South Dakota's existing regulatory landscape in the past. We will continue to operate within the current framework, knowing that the future of ethanol and agriculture is vital to our shared success."

Landowner groups in South Dakota had organized aggressively against Referred Law 21. The law allowed counties to impose a tax on carbon pipelines of $1 per foot. The law also imposes requirements for pipeline setbacks, minimum depth, rules for handling drain tiles, potential leaks and indemnities to landowners. The law also requires the South Dakota Public Utilities Commission to limit counties' authority to set tighter restrictions on pipelines. The law was dubbed by lawmakers as a "landowner bill of rights" but critics disputed that take.

Sinking the carbon in the ground could generate as much as $85 a ton for Summit under the 45Q tax credit. For ethanol producers, piping away the carbon rather than emitting it would dramatically lower their carbon-intensity scores for producing sustainable aviation fuel or selling biofuels into states that have low-carbon fuel standards.  READ MORE

 

Excerpt from AgWeb: 90% of votes were in as of mid-morning Wednesday, and 60% voted no and 40% voted yes. A “no” vote means the state law in question would be rejected, and that raises fresh questions about the Summit Carbon Solutions pipeline and similar projects.

Proponents of the law argued it would create a revenue stream for counties with a a $1-per-foot surcharge of pipeline projects. They also argued it would serve as a compromise between landowners and pipeline companies.

However, landowners didn’t agree and fought against he bill saying the law would take power out of the hands of the counties and infringe on personal property rights.

...

The company said the goal is to remove carbon dioxide (CO2) from the exhaust stream of 57 ethanol plants in a five-state region in Iowa, Minnesota, North Dakota, South Dakota and Nebraska, according to Jimmy Powell, chief operating officer for the Ames, Iowa-based company.

On June 25, the Iowa Utilities Board approved the permit for the pipeline. For construction on the pipeline to begin, permits must be secured in North Dakota and South Dakota.

Referred Law 21 was originally passed by legislators and signed by Gov. Kristi Noem (R). The law was meant to ease the path of carbon dioxide pipeline construction. But after garnering enough signatures, the law was put on the November ballot.

According to legal expert John Dillard, state governments have the primary authority to approve the siting and construction of CO2 pipelines as well as the eminent domain authority of the pipeline companies. These laws vary state-to-state, but they generally require pipeline companies to address safety and environmental concerns, provide notice to potentially impacted landowners, and minimize damage to landowner property. Some states preempt or restrict the authority of local governments to restrict pipelines while others allow zoning laws that would make construction difficult or impossible.  READ MORE

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What You Can Do Sustainability South Dakota safety pipelines North Dakota Legislation-State land use policy Iowa fermentation ethanol/bioethanol co-products carbon/CO2 sequestration carbon pipeline Carbon Dioxide (CO2) carbon capture and storage (CCS) BioRefineries/Renewable Fuel Production 2024 Election
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Co-optimization engineering England enhanced oil recovery (EOR) entrepreneur environment environmental impact study (EIS) environmental justice/socially inclusive environmental policy Environmental Quality Incentive Program (EQIP) Environmentalists Enzymatic enzymatic conversion enzymatic depolymerization enzymatic hydrolysis enzyme production enzyme recycling Enzyme solicitation enzymes EPA (Environmental Protection Agency) EPACT (Energy Policy Act) Equatorial Guinea equipment eRINs/electric pathway Eritrea erosion control EROWI (Energy Return on Water Invested) ESG (Environmental Social Governance) esterification Estonia ETBE (ethyl tert-butyl ether) etha ethane ethanol ethanol benefits ethanol blend wall ethanol blended diesel ED ethanol blends/ethanol flex fuels ethanol emissions ethanol ether diesel fuel ethanol fire ethanol fuel cells ethanol hybrid ethanol pipeline ethanol prices ethanol production ethanol pumps ethanol tax ethanol terminal ethanol to gas ethanol tolerance 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feed Feed In Tariffs (FIT) feed prices Feedstock Flexibility Program for Bioenergy Producers feedstock logistics feedstock material feedstock prices feedstock storage feedstock terminal feedstock transportation Feedstocks fermentation ferry fertilizer fiber Fiji Financing Finland Fischer-Tropsch Synthetic Kerosene with Aromatics (FT-SKA) Fischer-Tropsch Synthetic Paraffinic Kerosene (FT-SPK) Fischer-Tropsch Synthetic Paraffinic Kerosene with Aromatics (FT-SPK/A) Fischer-Tropsch/FT fish feed fish oil fish waste fit for purpose Fixed Base Operator (FBO) flameleaf sumac flavors flax fleet turnover Fleets fleshings flex-fuel vehicles (FFV) flight tests Flightpath flixweed/tansy/herb-Sophia flood-prone soil Florida flue gas FOG (Fats/Oils/Grease) follow-the-crop food Food and Agriculture Organisation (FAO) Food and Drug Administration (FDA) food and fuel food policy food prices food processing waste food safety food security food vs biomaterials/bioplastics food vs fuel food waste for forage forage sorghum forecasts foreign oil Foreign Policy forest Forest Biomass for Energy forest biotechnology forest residue/waste Forest resources Forest Service forestry forklifts Formate formic acid fossil carbon fossil fuel Frace fracking fractionation fragrance France franchise fraud free fatty acids (FFA) Freedom of Information Act (FOIA) freight/cargo French French Guiana fructose fruit FT-SKA fuel fuel additives fuel cell electric vehicle (FCEV) fuel cells fuel economy fuel efficiency fuel injection fuel mixtures fuel molecules fuel oil fuel performance fuel prices Fuel Quality Directive (FQD) fuel registration Fuel Retailers fuel testing fuel transportation fuel use fuel wholesaler fully burdened cost fund funding fungus/fungi Furanics furfural fusel oils Future Farmers of America (FFA) Gabon gallium Gambia games gas prices gas tax/highway user fee gas-to-liquid (GTL) gasification gasoline gasoline baseline gasoline consumption gasoline mandate gasoline markets gasoline price gasoline-range hydrocarbons Gemany General Services Administration general waiver authority generators genetically engineered yeast cells genetically enhanced microbes genetically modified organism (GMO) genome Georgia Georgia (country) geothermal German Germany Gerrmany Ghana GHG (Greenhouse Gas Emissions) GHG (Greenhouse Gas Emissions) Intensity giant cane giant kelp Giant King Grass Giant Reed/Arundo GIS glass tubing gliricidia sepium global rebound effect Global South global warming global warming potential glucose glycerin glycerin standards glycerol goats gorse Governance practices) Government Accountability Office (GAO) government investment government resources government subsidies grain sorghum/milo grain speculators grains GRAND-AM grants grants-local grants-state grapefruit grapes graphene graphite GRAS (generally regarded as safe) Grasses grasses grasshoppers grease Great Green Fleet Great Lakes Greece green bonds green chemistry Green Deal EU green economy green 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price isobutene isobutylene isomerisation isooctane isooctene isopropanol Israel Italy Ivory Coast JAA jackfruit Jamaica jamelão Japan jatobá Jatropha Jersey Jerusalem artichoke jet jet A Jet A-1 jet B Jetfuel (Sustainable Aviation Fuel (SAF)) Jimmy Carter Jobs Joint Office of Energy and Transportation jojoba Jordan JP-10 JP-4 JP-5/NATO F-44 JP-8/NATO F-34 juniper Just A MInute Just Transition jute K-12 Education Kabakanjagala kalanchoe kamani Kans grass Kansas Karanja Kazakhstan kelp Kemiri Sunan kenaf Kentucky Kenya kerosene ketones kinggrass Kiribati knotweed Knowledge Discovery Framework Korea Kosovo kudzu kukui nut kulpa kusum Kuwait Kygryzstan labels labor policy Labrador lactic acid lactose Lake County lamp oil land ownership land prices land rights land subsidence land tenure land transfer land use land use change land use policy landfill methane Landfills landscape Laos Latin America Latvia LCFS (Low Carbon Fuel Standard) lead Leadtree leaf ant Lebanon lecithin legislation 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