My response to HB 1052
by State Rep. Kent Roe
Several people, from several groups and on both sides of the issue, have asked me to explain my vote on HB 1052, the eminent domain law. I found both positive and negative views represented within District 4 on a near equal keel. This response may be lengthy, but the impact of this HB 1052, and its forthcoming sister HB 1085, have reverberating impacts and likely consequences on far more than just CO₂.
I voted against HB 1052. HB 1052 passed the house 49 – 19. The senate will take up their version soon. I also commend Speaker Hansen on his handling of floor debate.
In South Dakota, we didn’t cause this problem. The federal government did through tax credits. The ethanol industry can either adapt or lose. I’d at minimum like to give them the ability to adapt rather than forever deny access to a potential revenue booster. All corn farmers, and by extension the whole economy is lifted. Small towns, communities and schools benefit the most. District 4 is all farms, small towns and communities.
Zoning boards tell you permissible uses of your land. The SD PUC is largely a zoning board. We all abide by zoning or face the consequences of offending the rules.
I, and several of my employees, formerly handled CO₂ on a daily basis. We also handled explosive and flammable products. The threat to personal safety is real. We trusted decades of safety measures in place. Pipeline safety, and more specifically CO₂ pipeline and handling safety, are both robust and overarching.
I’d compare it to the threats we accept through everyday driving down the road, heating our homes, powering our utilities, flying in an airplane, and any other threat. Pipelines are not only economical, but incredibly safe. Every day we benefit from this safety and trustworthiness. Whether it’s the tank farm in the middle of town fed by a pipeline, the large pipelines transporting hydrocarbons, or the very gas pipelines buried in the rights of ways which then are further routed right into our very homes. The threat of pipeline failure is undeniably real. I cannot deny that threat no more than I can deny the threat of dust in my eye. I live comfortably with both of these, and several other nearly innumerable, risks.
The bill uses the term “carbon oxide”. This is a broad term. In floor testimony it was unclear what the definition of “carbon oxide” is. The term “carbon oxide” is borrowed from current federal sustainable energy language. Floor testimony defined it as: “any molecule containing carbon and oxygen bonded to each other.” This definition, “carbon oxide”, is simply too broad of a definition. If you mean CO₂, just say so.
The Trump administration supports & promotes energy independence. CO₂ is likely in the toolbox for this goal, and I support its potential use for fracking. Outlawing an entire enterprise to thwart this effort reflects badly on long term plans and big idea thinking. If we want to close South Dakota to big ideas and entrepreneurs, we’ve now very loudly sacrificed the first of, and likely many more, industries.
I also have constitutional concerns. The 5th amendment to the US Constitution addresses eminent domain providing “due process” and “just compensation”. HB 1052 likely also offends the Interstate Commerce Clause of the US Constitution. The Commerce Clause is Article I, Section 8, Clause 3 of the US Constitution. It gives Congress the power to regulate commerce between states, with foreign countries, and with Native American tribes. The clause also limits the ability of states to restrict interstate commerce. If the feds jump in and make a ruling that overrides HB 1052, South Dakota will lose the contest. But not before spending South Dakota taxpayer money defending HB 1052.
HB 1052 completely disregards local control. It took an enterprise agreed to by approximately 75% of impacted landowners (i.e. “local control”) and discounted their input, threw the idea to non-impacted parties, and said this impacts people in counties that have no ethanol industry and/or no corn production and/or no pipeline.
HB 1052 also changes rules midway through the process. I cannot imagine starting a new enterprise knowing the process could be changed if my impending idea is unpopular, that South Dakota will just pass a law if unpopular. This creates a precedent that will impact future industries from choosing South Dakota as a state open to new ideas.
During floor testimony the impact on ethanol value, and by extension corn value, was raised. In mid-January, the value of low carbon index (CI) ethanol was +31¢ per gallon in the ethanol market. This equates to roughly +93¢ per bushel on corn. Some producers have commented that this is not meaningful to their operation; however, I’ve talked to several who disagree and would welcome this added value to their corn. In District 4 I’ve heard yield results of 150+ bushels per acre. This 93¢ per bushel adds up.
My vote on HB 1052 was No, and my view on the upcoming HB 1085 is No.
If eminent domain laws need changing, let’s proceed with the process. Targeting specific industry is the wrong approach. I fully expect the votes on HB 1085 to be a carbon copy of the vote on HB 1052. I refuse to support legislation that is both vague & arbitrary in its language, punitive in its intent, and dispiriting to entrepreneurs regardless of their industry. Let’s keep South Dakota open to business.
That will definitely be “No Go” for any future support, past the 10k cap.
and..
..the group also moved forward the Minnehaha County Republican GOP Executive Board’s code of conduct, which talks about treating people with civility and “ to resolve conflicts constructively.”
