ABERDEEN, S.D. (KELO) — A carbon dioxide pipeline in development had the South Dakota Supreme Court’s attention in Aberdeen on Tuesday, where lawyers representing landowners and Summit Carbon Solutions made their arguments in front of the justices. A key point of disagreement was whether or not carbon dioxide is a commodity in the case.
“It’s absolutely not a commodity,” said Brian Jorde, who represented the landowners. “How is this an article for commerce? How is it, it’s not being added to a product for beneficial use.”
“It fits all the tests of commodities in general, but it also fits it here, right,” said Bret Dublinske, who represented Summit Carbon Solutions. “This is in fact moving in commerce.”
After various landowners denied Summit Carbon Solutions access to their land, a legal battle ensued. Eventually, a circuit court found that Summit Carbon Solutions, as a common carrier available to the public, had a right to do surveys for the pipeline on the land. Landowners have appealed. On Tuesday, Dublinske says his client is making themselves available to perform a service.
“We are holding ourselves out as shipping CO2 from point to point for a fee,” he said. “There is a charge, and the law says that can be direct or indirect, that is being paid by the producer of the carbon dioxide, the ethanol plant, for the transport of that ethanol.”
Summit Carbon Solutions intends to take carbon dioxide from an ethanol plant and store it in North Dakota. Jorde says this case will set a national precedent.
“Their business model, how they’re transporting a commodity on a per-state basis when they’re using it as a term of art to get privileges under this common carriage, that hasn’t been decided by anywhere,” Jorde said. “I mean, you’re going to be, this is going to be the first impression in the country on that issue whether this CO2, heading for permanent sequestration, is in fact a commodity.”
A decision on the case will come on a future date.
