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.
Representative Roe,
Thank you for penning this response. It is easy to discern from your comments that you “get” this issue. We need to listen when you say, “why should South Dakota let the Federal Government regulate this issue in South Dakota?” We made a grave mistake overturning SB201. Let’s not continue down the road of mistakes. Let’s go down the road of making South Dakota great right beside America. Being pro-business is not a bad thing.
Representative Roe actually gave a reasoned argument. I thank him for being articulate and thoughtful. Too bad those qualities place him on an island among the current crop of legislators. Now I want to hear from Mortenson. Why did he flip? I have respected Will to this point, but that is now in jeopardy. It better be a better reason than just “covering my butt”.
Probably knew it was a lost cause and didn’t want the crazies torpedoing his bills
He probably got tired pipeline Greta Thunberg (Amanda Radke) howling at him and making threats and has resigned to letting them play their hand out.
Thank You Representative Roe.
This is a thoughtful and reasoned explanation. It shows understanding and vision for the future.
Not emotional, not fear mongering.
If changing the rules in the middle of the game was a sound reason, we should have never made cochise illegal because there was a time when cochise was legal. We should have never outlawed brothels because there was a time when brothels were legal. How many regulations have been put on the banking industry over the years because of issues that arise. Almost every regulations changes the rules in the middle of the game for someone.
Except all of the examples you give arise from some form of harm arising. In the case of CO2 pipelines, the harm is only imagined.
Nice job Rep. Roe.
anon 2:32 – if it were up to Will, his gpa (and his jacket), back in the 50’s would have gotten to keep his ranch and the Corp would have never built the Oahe Dam and preventing trillions of dollars of revenue and opportunity to the state’s up and downstream. It’s a perfect example of WITHOUT eminent domain projects don’t get built. The NIMBY’s philosophy: One person ….one veto.
Runge: just curious…. what laws did the oxide pipeline company break that there should be a change in regulation?
The Missouri River experiment is still under review. Your freedom from flooding didn’t work out so well in 2011 did it?
I don’t see why we need to encourage ANY development at this point of ANY kind in SD. We obviously don’t need the tax revenue. We don’t need to support the ag economy. Everything will be just swell. We can’t lose! Jobs and opportunity will fall from heaven. That patriotic education will teach our children we’ve done nothing wrong.
This line of thought allows me to vote to kill a project essential to a critical industry in SD while saying out loud I’m still a supporter of that industry. Keep saying it. Hope it works out.
I think you are presenting a false equivalency here. It’s absurd to equate the Pick-Sloan project with a foreign corporation trying to condemn land for their profit. I’m not in favor of foreign (or any) corporations being able to coerce landowners tor a private project. Ain’t right.
Seriously tired of this argument. Educate yourself. Private corporations cannot use eminent domain for their own benefit. They have to be common carrier status and the project has to be deemed for the public good, etc. They don’t have the ability to currently use eminent domain. But now if they are granted common carrier status, they will somehow be the only common carrier not able to use eminent domain? Sure. That makes sense.
what corporation is foreign owned? who are you talking about? If the pipeline is owned by China, please present your facts. I think you are making that up
Iowa. Foreign.
Very well said. SD is quickly becoming a no development state. No development means the property tax burden will fall more heavily on homeowners.
Exactly right! NO on everything means you are a YES to more local effort and are just fine with paying more taxes
Can someone tell me, perhaps rep. Roe, what will be the repercussions of SD tanking this project? This is a 4 state project that has been moving forward in all the other states.
I think we are at the tipping point.
The next two weeks for the next twenty years of South Dakota’s future.
Will is about Will.
He and his 2026 running mate Karla “no growth” Lems will be asking for your grassroots donation soon.
This legislation was built on hate. Hate Summit. Hate growth. Hate that your neighbor may benefit when you don’t. This is California and NY type legislation. SD WAS better than that.
Young Mr. Roe seems like a sensible fellow. I, for one, look forward to hearing more from him.
Thank You Rep Roe!! You are doing what’s right for Dist 4 and the people of SD!! If only others had the common sense that you do