The South Dakota Supreme Court wants to see more evidence before ruling on a case of landowner’s vs Summit Carbon Solutions.
The court ultimately aims to determine if carbon is a commodity and if SCS is a common carrier.
The case centers arounds the rights of private companies surveying private land. The crux of the issue is determining if carbon is a commodity.
Brian Jorde is an attorney who represents South Dakota landowners. He argued that the lower court’s decision that SCS is a common carrier company goes against the state’s constitution. He hopes the higher court will review and agree.
“It’s absolutely clear that SCS takes title as soon as the CO2 emits from the ethanol plant. They are transporting what they own. They are a private, for profit, carrier and they do not have the protections of 49.7.11,” said Jorde.
Carbon ownership contracts were a factor in determining the carrier status of SCS.
Bret Dublinske is an attorney representing Summit Carbon Solutions. He said the fact that SCS is being paid to transport carbon proves its commodity status.
“The agreements and letters of intent between SCS and the counter parties have a tipping and transport charge. We are holding ourselves out as shipping CO2 from point to point for a fee. There is a charge, and the law says that can be direct or indirect. It is being paid by the producer of the carbon dioxide, the ethanol plant, for the transport of that ethanol,” said Dublinske.
The Supreme Court was provided with redacted, or edited, versions of the agreements.
Janine Kern is a Supreme Court Justice. She requested that Summit Carbon Solutions provide the court with unredacted contracts.
“Do you object to this court directing your client to submit it? Or submitting it on behalf of your client?,” asked Kern.
Summit Carbon Solutions agreed to the ten-day window to provide the court with copies of unedited agreements.
Once all evidence is received, the Supreme Court will debate until a consensus is reached. A ruling is expected in the coming months.
This case was one of several the South Dakota Supreme Court is tackling during a traveling Term of Court at Northern State University in Aberdeen. While the court usually meets at the Capitol in Pierre, these special sessions are held to give South Dakotans an up-close look at how the judicial system works.
