Is federal oversight needed for carbon dioxide pipeline development?

• South Dakota banned eminent domain for CO₂ pipelines, jeopardising Summit Carbon Solutions' $8.9 billion project

• Expanding CCS requires a massive CO₂ pipeline network, but state resistance threatens U.S. net-zero goals

• Federal oversight could streamline CO₂ pipeline development while ensuring safety, justice, and international climate commitments

In early March, the Governor of South Dakota signed into law House Bill 1052. The law prohibits the use of eminent domain to acquire right-of-way over private property for the purpose of construction of carbon dioxide pipelines in the state. “Eminent domain” refers to the power of a government entity to “take” private property and convert it to public use, with the term “take” encompassing both physical seizure of property, and significant restriction of a person’s use of their property. The U.S. Supreme Court has also held that government entities may take private property and transfer it to other private interests if it’s for a “public purpose.” Under the Fifth Amendment of the U.S. Constitution, however, property owners must be accorded “just compensation” in any case where their property is taken.

The new law in South Dakota may scupper the prospects for an $8.9 billion, 2500-mile carbon dioxide pipeline project helmed by a company called Summit Carbon Solutions. This is because it may be impossible to secure right-of-way access for construction of the pipeline from all landowners on the contemplated route in South Dakota. Indeed, days after the law came into effect, Summit Carbon Solutions paused its application to the South Dakota Public Utilities Commission for a permit to construct the pipeline. 

The purpose of the Summit Carbon Solutions project is to transport carbon dioxide captured from 57 ethanol plants in five Midwest states through a process called carbon capture and storage (CCS). CCS is a technological approach that can help combat climate change by effectuating capture of carbon dioxide from emissions sources, such as industrial facilities or the combustion of fossil fuels. The captured CO₂ is then transported through pipelines or other means, such as ships, rail or trucks, and stored in geological formations. Captured carbon dioxide can also be utilised, such as in enhanced oil recovery operations or the making of chemical products or fuels; this is often referred to as Carbon Capture, Utilisation, and Storage, or CCUS. The Summit pipeline project would transport captured carbon dioxide from plants in Iowa, Minnesota, North Dakota, South Dakota and Nebraska for underground geological storage in North Dakota.

State and local resistance to carbon dioxide pipelines could prove extremely unfortunate given the critical role that CCS, as well as carbon dioxide removal (CDR) approaches (technologies to remove carbon dioxide from the atmosphere) must play in global and national climate policymaking. According to the International Energy Agency’s Net-Zero Roadmap, global emitters will need to capture 7.8 billion tons annually by 2050 through the use of CCS, which means that the sector must expand 100-fold by the middle of the century. 

A U.S. Department of Energy Report in 2024 concluded that the United States would need to increase its CCS capacity 16-80 times over that period to achieve net-zero emissions goals. Moreover, it’s been projected that meeting net-zero goals may require removal of 10-20 billion tons of carbon dioxide annually from the atmosphere from the middle of the century and beyond. The United States’s equitable share of this obligation is pegged at between 160-250 billion tons by the end of this century.

Scaling up CCS in the United States, as well as CDR approaches that require transport of carbon dioxide for storage, such as direct air capture and bioenergy with carbon capture and storage (BECCS) will require substantial expansion of this country’s CO₂ pipeline network. Alternative modes of conveyance, such as trucks and rail, can be used on a small scale, but aren’t really economically viable for scaling these approaches to meaningfully combat climate change.

While approximately 5,000 miles of carbon dioxide pipelines currently exist in the United States, the U.S. Department of Energy has estimated that the country will need between 30,000-96,000 miles of pipelines to meet the United States’ net-zero emissions goal. By comparison, there are more than three million miles of pipelines for the conveyance of natural gas. 

I believe there are compelling arguments for why jurisdiction over pipeline siting decisions should lie with the federal government rather than individual states. First, climate change has national ramifications. For example, while climate change may induce drought in individual states, this can raise food prices throughout the nation, with disproportionate impacts on the poor. Similarly, while climate change might damage critical energy infrastructure in one state, this can ultimately result in higher national energy prices, again, particularly affecting overburdened communities. Climate change is also a palpable national defense issue, with the National Intelligence Council concluding that “climate change will increasingly exacerbate risks to U.S. national security interests as the physical impacts increase and geopolitical tensions mount about how to respond to the challenge.” 

Second, the U.S. government has international obligations that can be thwarted by state approaches that interfere with implementation of climate solutions, such as CCS and CDR. While the United States has recently withdrawn, once again, from the Paris Agreement, it remains a party to the United Nations Framework Convention on Climate Change (UNFCCC). Its obligations under the UNFCCC include adoption of national policies to reduce national greenhouse gas emissions and to enhance processes that remove carbon dioxide from the atmosphere (Art. 4(1)(b)). The U.S. Supreme Court has frequently held that treaties ratified by national governments preempt contrary state or local laws, and a case can be made for application of this principle in the case of South Dakota’s new pipeline legislation. 

Yet, while the federal government serves as the operational regulator of virtually all U.S. pipelines, and virtually every substance conveyed in such pipelines, it has eschewed asserting such jurisdiction over carbon dioxide pipelines. The only current federal siting authority for CO₂ pipelines is when they cross federal lands. 

Legal scholars, as well as the Biden administration, have proposed federal regulation of carbon dioxide pipelines in recent years. Despite the Trump administration’s strong hostility to most climate policies, it has signaled continued support for both carbon capture and carbon removal approaches. Facilitating carbon dioxide pipeline development through national regulation could be a critical component of such a policy vision. 

One potential option would be to apply the natural gas pipeline model, with the Federal Energy Regulatory Commission (FERC) assuming responsibility for the siting of pipelines, as well as setting transportation rates. An alternative option could be a federal “backstop” authority, with states maintaining initial siting authority, but according FERC authority to issue permits to pipeline projects should states fail to act. 

Moreover, a case can be made to accord private parties federal eminent domain authority for the siting or acquisition of property for the construction of carbon dioxide pipelines. Precedent for this proposal can be derived from how the siting and construction of natural gas pipelines are regulated under the Natural Gas Act of 1938 (NGA). A 1947 amendment to the NGA declared that natural gas is “affected with a public interest,” and that regulation of the industry is in “the public interest.” As such, it imbues private operators with federal eminent domain authority for pipeline construction. It seems beyond contention that addressing climate change is no less in the public interest, warranting eminent domain authority.

Of course, every effort should be made to minimise the impacts of carbon dioxide pipeline construction on private landowners and the community. One way to do so is to strengthen carbon dioxide pipeline safety standards. Carbon dioxide pipeline failure rates are similar to those for carrying oil and natural gas, and “relatively rare.” Moreover, while large ruptures can release large amounts of carbon dioxide, which can pose hazards to human beings, small leaks are far more common. 

However, carbon dioxide releases in large concentrations can result in oxygen deprivation, disorientation, heart malfunction, and even death in very high concentrations, and such accidents can occur. For example, in February of 2020, a CO₂ pipeline ruptured in the rural community of Satartia, Mississippi, resulting in the hospitalisation of more than 45 people and evacuation of more than 200. 

Immediately before the end of the Biden administration’s term, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) proposed new rules to strengthen the safety of carbon dioxide pipelines. The proposed rules reflected lessons learned from the Satartia accident and input from an extensive public outreach campaign by PHMSA. Provisions of the proposed rule included the following:

• Design, installation, operation, maintenance, and reporting requirements for carbon dioxide gas pipelines

• Training for emergency responders and provision of equipment for local responders to test for carbon dioxide and to help ameliorate impacts

• Improved public communication systems in the case of accidents

• Requirements for more detailed vapour dispersion analyses to help protect the public and environment in the event of an accident

Unfortunately, the Trump administration’s January 20 Executive Order freezing all pending regulations, and initiating a review process of these regulations, has put the rules in jeopardy. Every effort should be made to pressure the administration to ultimately adopt these rules. 

Moreover, every effort should be made to avoid the siting of CO₂ pipelines in areas marked by “high social vulnerability,” that is, characterised by poor capabilities to handle potential pipeline disasters. In the context of energy pipelines, a recent study found a higher density of pipelines in areas of higher social vulnerability, raising serious issues of justice and equity. A concerted effort should be made to avoid these outcomes in the context of expanding CO₂ pipeline networks, including through the use of advanced methods to technically critique regulatory claims related to environmental justice, and closer attention to the cumulative impacts of co-located pipelines and other infrastructure. Every effort should be made to structure meaningful community engagement for proposed projects, including public workshops and public involvement in the planning of carbon removal projects, including pipelines. 

Effective climate policymaking requires a careful balancing of the rights of individual landowners, the rights of states, and the responsibility of the federal government to protect the national welfare and meet international obligations. Reformation of laws related to carbon dioxide pipelines to ensure scaling of effective climate solutions, while providing just compensation for landowners affected by such infrastructure, can thread that needle in an era in which there are no easy answers. 

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