SIOUX FALLS, S.D. (KELOLAND) — The South Dakota Supreme Court said Thursday Summit Carbon Solutions has not demonstrated that it is a common carrier “holding itself out to the general public as transporting a commodity for hire.”

The opinion stems from an earlier summary judgment by the circuit court which determined SCS’s proposed carbon dioxide pipeline was a common carrier as it applied to surveys on private land.

Summit plans to build a roughly 2,500 pipeline to transport captured CO2 at sites that include ethanol plants in South Dakota. The CO2 would be buried on land in North Dakota. More than 400 miles of the pipeline would travel through South Dakota.

The Supreme Court said its decision is a strict interpretation of SDCL 21-35-31 which applies to surveys and examination and entry on private property.

Landowners who filed a lawsuit against Summit said the company had overstepped its legal abilities on surveys of private land. Summit did not have the right to drill or use heavy equipment for surveys, the lawsuit claims. The proposed pipeline is not a common carrier of a commodity, so South Dakota law on eminent domain did not apply, the lawsuit argued.

The Supreme Court’s decision overturns a circuit court summary judgment on common carrier issues. The Supreme Court said it was “premature to conclude that SCS is a common carrier, especially where the record before us suggests that CO2 is being shipped and sequestered underground with no apparent productive use.”

Representatives for the landowners and Summit shared emailed comments on the ruling Thursday.

Sabrina Ahmed Zenor of Summit provided a statement to KELOLAND News, “We are carefully evaluating the South Dakota Supreme Court’s decision and remain confident as we prepare to present the information requested that supports our role as a common carrier, and that CO2 is a commodity.”

Brian Jorde, the lawyer representing landowners in the lawsuit against Summit said in email to media that the ruling was a “Big win for SD landowners and property right defenders today!”

The Supreme Court noted in its opinion that several states have declared that CO2 is a commodity but said that was because of its potential industrial applications. “The Legislature of South Dakota, however, has been silent on this particular subject, ” the Supreme Court opinion said.

“The economic impact of carbon capture, utilization, and storage (CCUS) on rural America is significant, and will greatly benefit agriculture and farmers,” Ahmed Zenor said in the Summit statement. “We are committed to ensuring that these benefits reach communities across our project footprint as we continue to be a valuable partner in this growing market.”

Spink County landowner Ed Fischbach told KELO that this was a victory for landowners.

Opponents of the proposed Summit project have said the potential benefits are exaggerated by the company.