University of St. Thomas Law Journal

Legal Challenges Surrounding the Summit Carbon Solutions Pipeline

Kate Sargent*

Summit Carbon Solutions has proposed an $8.9 billion, 2,500-mile carbon pipeline transporting carbon dioxide emissions from ethanol plants across five states.1 Ethanol plants are responsible for turning corn into fuel; this fermentation process emits carbon dioxide.2 The company is partnering with fifty-seven ethanol plants across Iowa, Minnesota, North Dakota, South Dakota, and Nebraska to implement a pipeline that will reduce the carbon footprint of ethanol production.3 The process works by capturing CO2 released by ethanol plants, compressing the captured gas into pipelines, and channeling it to North Dakota where it is permanently stored underground in deep geologic storage locations.4

The company lists project benefits such as: bringing new economic opportunities for the ethanol and agricultural industries; strengthening the Midwest regional economy through increased local tax revenue and support of local suppliers; and storing up to eighteen million tons of CO2 every year.5 Through carbon capture, the ethanol produced at the fifty-seven facilities will become a net-zero fuel by 2030, allowing the facilities to sell their product at a premium to states and countries that have adopted low carbon fuel standards and access emerging markets, like sustainable aviation fuel.6

State Permits:

The project relies on Summit Carbon Solutions obtaining the required permits in all five states. Iowa was the first state to approve the project and granted Summit a permit on June 25, 2024.7 After denying its first application, North Dakota regulators approved a permit for 333 miles of the pipeline on November 15, 2024.8 The approval is currently being appealed by a group of landowners and two counties on different grounds.9 On November 19, 2024 Summit reapplied for a permit for a 700-mile route in South Dakota, after being denied a year earlier.10

The Minnesota Public Utilities Commission granted a permit on December 12, 2024, for a 28-mile route through two counties.11 This is only a small segment of the total 245 miles of pipeline Summit intends to run through Minnesota.12 Nebraska currently has no state agency that issues carbon pipeline permits.13 Regulators in Iowa and Minnesota conditioned their approval of the permits, requiring Summit to secure permits in other states before commencing construction.14 While Summit anticipates to begin construction in 2025, securing all the necessary permits will be a large obstacle in meeting its intended timeline.

Property Rights:

The Summit Carbon Solutions pipeline presents issues for those who own land along the proposed route. The company plans to obtain the property rights required for the project through voluntary easements with landowners.15 A voluntary easement is an agreement in which the landowner gives Summit the right to construct a pipeline on their property.16 The easement is in perpetuity and Summit would retain the easement even if the pipeline is not built.17 By February 9, 2023, Summit had signed easements for over 60 percent of its total proposed route and this number is likely much higher now.18 CURE, a rural grassroots organization group in Minnesota, has publicized resources for landowners to know their rights when it comes to voluntary easements, eminent domain, and carbon pipelines.19

If the route cannot be secured through voluntary easements, Summit will likely turn to eminent domain, the power of the government to take private property for public use. When the permits were granted in Iowa, Summit was given the right to use eminent domain.20 However, in North Dakota, approval of the permits did not guarantee Summit the right to use eminent domain and the company was encouraged against it.21 Under Minnesota law, Summit is not able to use eminent domain either.22 In South Dakota, lawmakers have endorsed a bill that would prohibit the use of eminent domain for carbon pipelines.23 The bill passed in the House of Representatives and will now be introduced in the Senate.24 The proposed legislation follows a determination by the South Dakota Supreme Court that Summit has not yet proven that it is a common carrier entitled to the use of eminent domain.25 With some states prohibiting the use of eminent domain, and voluntary easements requiring the assent of thousands of landowners, securing the property rights is another challenge Summit continues to face.

Safety Concerns:

Landowners and regulators have also voiced safety concerns about the potential for the pipeline to rupture, causing CO2 to be released into the atmosphere. Carbon dioxide is transported through the pipelines in a highly pressurized liquid form.26 When the liquid form reacts with water or other contaminants, it turns into carbonic acid, which can dissolve a steel pipeline, causing a leak.27 Carbon dioxide is an odorless asphyxiant and CO2  poisoning can cause headaches, nausea, convulsions, cardiac arrest, and death.28 The gas can also cause vehicle shutdowns which make evacuation and emergency medical transportation nearly impossible.29

In 2020, in Satartia, Mississippi, a pipeline failure sent nearly fifty people to the hospital, and left some with lingering respiratory, cognitive, and neurological impacts years later.30 After the disaster, the Department of Transportation and the Pipeline and Hazardous Materials Safety Administration proposed safety regulations for carbon pipelines.31 These rules were pulled before being finalized by a Trump executive order requiring agencies to withdraw any rules that had not yet been published in the Federal Register.32 Without safety protocols, companies are left to self-regulate and communities near the pipelines are left at a greater risk of harm.

The Minnesota Public Utilities Commission had concerns about the safety of the project and made its approval of the permit subject to conditions like Summit providing CO2 monitors for residences within one thousand feet of the project and training and equipment to first responders.33 In light of the DOT regulation’s forced withdrawal, other states may want to follow Minnesota’s lead, imposing their own safety precautions.

Tax Credits:

Summit Carbon Solutions’ proposal for its pipeline is reliant on tax credits supplied by the federal government under the 45Q tax credit program.34 This program was expanded in 2022 by the Inflation Reduction Act, and offers $85 per metric ton of sequestered carbon captured.35 On January 22, 2025, President Trump suspended all Inflation Reduction Act funding disbursements for review under the new administration.36 The executive order does not directly impact the availability of tax credits and President Trump is unable to reform the tax credits or repeal the Act without approval from Congress.37 A Summit attorney was asked about the financial viability of the project in the event the tax credit is repealed, to which she responded that the tax credit is important to the company’s business model and a repeal would require the company to reassess.38 The uncertainty surrounding this essential financial incentive signals another legal issue Summit must consider.

The legal issues described here will continue to unfold and develop. The resolution of those issues will be determinative of whether Summit Carbon Solutions will be able to break ground on this ambitious and controversial project.

* Kate Sargent, J.D. Candidate, University of St. Thomas School of Law Class of 2026 (Associate Editor).

  1. Frequently Asked Questions, Summit Carbon Solutions, https://summitcarbonsolutions.com/frequently-asked-questions/ [https://perma.cc/ETF2-APFM] (last visited Mar. 3, 2025). ↩︎
  2. Jeff Beach, North Dakota Approves Summit Carbon Pipeline Route, N.D. Monitor (Nov. 15, 2024, 10:52 AM), https://northdakotamonitor.com/2024/11/15/north-dakota-approves-summit-carbon-pipeline-route/ [https://perma.cc/Q6KE-D3VL]. ↩︎
  3. Project Footprint, Summit Carbon Solutions, https://summitcarbonsolutions.com/project-footprint/ [https://perma.cc/NV3Y-P39Z] (last visited Mar. 3, 2025). ↩︎
  4. Id. ↩︎
  5. Project Benefits, Summit Carbon Solutions, https://summitcarbonsolutions.com/project-benefits/ [https://perma.cc/LP7K-JFBM] (last visited Mar. 3, 2025). ↩︎
  6. Id. ↩︎
  7. Summit Carbon Solutions Granted Approval by IUB for CO2 Pipeline, Summit Carbon Solutions (June 25, 2024), https://summitcarbonsolutions.com/summit-carbon-solutions-granted-approval-by-iub-for-co2-pipeline/ [https://perma.cc/EX5V-26GJ]. ↩︎
  8. Beach, supra note 3. ↩︎
  9. Jeff Beach, Landowners Appeal Summit Carbon Storage Decision, N.D. Monitor (Jan. 9, 2025, 4:11 PM), https://northdakotamonitor.com/2025/01/09/landowners-appeal-summit-carbon-storage-decision/ [https://perma.cc/D4PW-HRU8]. ↩︎
  10. Building Pathways for South Dakota’s Future: Summit Carbon Solutions Advances with Statewide Permit Application, Summit Carbon Solutions (Nov. 19, 2024), https://summitcarbonsolutions.com/building-pathways-for-south-dakotas-future-summit-carbon-solutions-advances-with-statewide-permit-application/ [https://perma.cc/V36P-ZBA9]. ↩︎
  11. News Release, Minn. Pub. Utilities Comm’n, Minnesota Public Utilities Commission Grants Approval for Summit Carbon Pipeline (Dec. 12, 2024), https://content.govdelivery.com/accounts/MNPUBUC/bulletins/3c70a84 [https://perma.cc/KR6Y-AJAA]. ↩︎
  12. Leah Douglas, Summit Carbon Project Would Be Reassessed if Tax Credits Repealed, Attorney Says, Reuters (Dec. 12, 2024, 4:44 PM), https://www.reuters.com/sustainability/summit-carbon-project-would-be-reassessed-if-tax-credits-repealed-attorney-says-2024-12-12/ [https://perma.cc/HN4U-RQV8]. ↩︎
  13. Beach, supra note 3. ↩︎
  14. Clark Kauffman, Iowa Utilities Board Approves Permit for Controversial Summit Pipeline, Iowa Cap. Dispatch (June 25, 2024, 1:39 PM), https://iowacapitaldispatch.com/2024/06/25/iowa-utilities-board-approves-permit-for-controversial-summit-pipeline/ [https://perma.cc/3XFL-9VER]; News Release, supra note 12. ↩︎
  15. Summit Carbon Solutions Partners with Midwest Landowners to Sign Easement Agreements Surpassing 60% of the Project Route, Summit Carbon Solutions (Feb. 9, 2023), https://summitcarbonsolutions.com/summit-carbon-solutions-partners-with-midwest-landowners-to-sign-easement-agreements-surpassing-60-of-the-project-route/ [https://perma.cc/T493-ZY6K]. ↩︎
  16. Memorandum, Cure MN, Landowners: Know Your Rights Regarding Voluntary Easements, Eminent Domain, and the Summit Carbon Solutions Pipeline, https://www.curemn.org/wp-content/uploads/2021/12/MN-Landowner-Document.pdf. ↩︎
  17. Id. ↩︎
  18. Id. ↩︎
  19. Id. ↩︎
  20. Kaufmann, supra note 15. ↩︎
  21. Beach, supra note 3. ↩︎
  22. Jeff Beach, Summit Pipeline Decision in Minnesota Could Come Dec. 12, Minn. Reformer (Nov. 11, 2024, 6:53 PM), https://minnesotareformer.com/2024/11/11/summit-pipeline-decision-in-minnesota-could-come-dec-12/ [https://perma.cc/BT3A-ZBT3]. ↩︎
  23. H.B. 1052, 100th Legis. Sess. 1052 (S.D. 2025). ↩︎
  24. Eminent Domain Bill Advances to SD Senate, Sioux County Radio (Mar. 3, 2025), https://siouxcountyradio.com/brownfield-ag/eminent-domain-bill-advances-to-sd-senate/ [https://perma.cc/FCC8-DGT5]. ↩︎
  25. Joshua Haiar, Court Ruling Complicates Carbon Pipeline Company’s Push for Land, S.D. Searchlight (Aug. 22, 2024, 4:24 PM), https://southdakotasearchlight.com/2024/08/22/court-ruling-complicates-carbon-pipeline-companys-push-for-land/ [https://perma.cc/XRC7-HLCN]. ↩︎
  26. Alison Cagle, A Leaking CO2 Pipeline Can Cause Suffocation Within a Minute. The Government Needs to Regulate Them, Fast, Earth Justice (Sept. 4, 2024), https://earthjustice.org/article/a-leaking-co2-pipeline-can-cause-suffocation-within-a-minute-the-government-needs-to-regulate-them-fast [https://perma.cc/WWK5-P88P]. ↩︎
  27. Id. ↩︎
  28. Id. ↩︎
  29. Id. ↩︎
  30. Emily Sanders & Dana Drugmand, Trump Removes “Zombie” Pipeline Safety Rules, The Lever (Feb. 25, 2025), https://www.levernews.com/trump-removes-zombie-pipeline-safety-rules/ [https://perma.cc/VVT3-KN7Z]. ↩︎
  31. Id. ↩︎
  32. Id. ↩︎
  33. News Release, supra note 12. ↩︎
  34. Douglas, supra note 13. ↩︎
  35. Douglas, supra note 13. ↩︎
  36. Kate Magill, Trump Freezes IRA Funding, Utility Dive (Jan. 23, 2025), https://www.utilitydive.com/news/president-trump-inflation-reduction-act-executive-order-ev-mandate/738001/ [https://perma.cc/4VBE-C5KL]. ↩︎
  37. Alex Parker & Trina Pinneau, IRA Credits Remain in Place Despite Mixed Signals, Eide Bailly (Jan. 29, 2025), https://www.eidebailly.com/insights/blogs/2025/1/20250129aptp [https://perma.cc/M94E-L8QR]. ↩︎
  38. Douglas, supra note 13. ↩︎

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