Over the last several years, the Iowa House has fought to protect landowners from the unconstitutional use of eminent domain for CO2 pipelines by sending four strong pieces of legislation to the Senate. In 2023, the first effort requiring at least 90% voluntary easements died in the Senate. In 2024 the second effort requiring a declaratory judgment upfront on the constitutionality of eminent domain requests died in the Senate. This year, we sent the Senate two strong bills to protect landowners from the use of eminent domain for the CO2 pipelines. In this edition of Freedom Watch, a reality check regarding Senate actions on bills sent to them by the House to protect landowners fighting against eminent domain for the CO2 pipeline projects.
A bit of historical background would be helpful in this discussion. Traditionally, eminent domain has been granted to companies, both public and private, for projects that meet the constitutional standard of “public use.” This has been understood to be electric transmission lines and oil and natural gas pipelines that provide power to our homes and businesses and fuel our transportation and infrastructure. It has also been used for projects such as highways and military bases, again things essential for our society and security. All of these fit clearly under the “public use” concept. However, in 2005, a landmark U.S. Supreme Court decision known as Kelo Vs City of New London held in a 5-4 ruling that the use of eminent domain to take the property of one private owner and give it to another for economic development did not violate the Takings Clause of the 5th Amendment. This now infamous ruling in effect changed the “public use” standard to one of “public benefit,” and as Justice Sandra Day O’Connor stated in her strong dissent, this severely damaged private property protections long held sacred by Americans. This brings us a step closer to where we are today.
The Iowa Constitution also has a requirement of “public use” for eminent domain to be used, and there has been no ruling to water down Iowa’s constitutional protections. In fact, recent Iowa Supreme Court rulings have more closely aligned to Justice O’Connor’s dissent in the Kelo case. This is interesting context, given that the Iowa Utilities Commission (IUC), on their website, uses the term “public benefit” instead of the constitutional term “public use.”
Following the strict and traditional understanding of the definition of “public use,” which is not the same as “public benefit,” I joined a group of 41 Republican intervenors in suing the Iowa Utilities Commission on behalf of landowners, believing that the IUC did not have the constitutional or statutory authority to grant eminent domain for a private economic development project. Those legal cases are moving through the court system, even as House Republicans have continued to fight for landowners by advancing legislation to try and reinforce the constitutional standard of “public use.”
HF943 passed the House this session and was sent to the Senate. The bill provides that the construction of hazardous liquid pipelines for the transportation or transmission of liquefied carbon dioxide is not a public use, public purpose, or public improvement for purposes of condemnation of agricultural land by a utility unless the owner of the agricultural land consents to the condemnation. This is in keeping with the traditional standards of public use and common carrier, identifying this CO2 project for what it is – a private economic development project. The Senate did not hold a subcommittee and let this important legislation die at the end of last week, when the second funnel deadline passed.
HF639, also passed by the House this session, became an omnibus bill to protect landowners in the fight against eminent domain for the CO2 pipelines. We had a total of six bills combined into this one bill through the amendment process, which passed the House with strong support and was sent to the Senate. Last week, the Senate amended the bill, and not for the better if the objective is to protect landowners in the current fight against eminent domain.
In a strike after amendment, the Senate removed almost everything from the original House bill except the requirement that Iowa Utilities Commission commissioners attend informational meetings and hearings.
The original House bill applied only to CO2 pipelines, due to the reality that they are profoundly different both in purpose and safety considerations from other projects for which eminent domain could be considered. The Senate amendment applies to any project seeking eminent domain approval before the IUC, including oil and natural gas pipelines, transmission lines, and power generation. This is unnecessary and does not provide additional landowner protection as has been suggested. On the contrary, this is not needed for other projects that are actually public use by accepted definition, and many with a knowledge of politics would consider this a poison pill effort to invite additional opposition from those common carriers not originally in the House bill.
The amended Senate version would allow projects to go outside their registered corridor, with the stated objective being to avoid having to use eminent domain. However, the devil is in the details. This change would allow projects to seek easements outside the notification corridor without starting the process over. This would appear to help CO2 pipeline and other projects by allowing them to avoid proper notification and to make major reroutes without starting over, with the potential of impacting landowners outside the corridor without their input.
The amended Senate version requires the IUC to make a decision within one year on projects seeking eminent domain taking, with the argument being this will help landowners with a speedier process. However, careful consideration of this change reveals that it would disadvantage landowners by giving them less time to understand the project and how it impacts them, organize, and fundraise if necessary to support and prepare a legal defense. Meanwhile, advantage to the company with vast resources using the heavy hand of government to take the land of others.
Deeply concerning, the amended Senate version strikes our common carrier definition, leaving CO2 pipeline companies to request eminent domain for private economic development projects that are not for public use.
The House version expanded the list of those who could intervene on behalf of landowners before the IUC, because the IUC overly restricted who could intervene during the hearings on the CO2 pipelines. The Senate version strikes this provision.
The amended Senate version waters down the insurance requirements we put in place on CO2 pipeline companies in order to protect landowners and counties struggling with liability issues. On the positive side, the Senate did add lifetime repair and replacement costs for drainage tile, crop loss, and soil degradation, which appears to be a good step in protecting against loss, and they added the ability for landowners to request and be granted a new land representative.
The failure of the Senate to advance HF943, combined with the changes made to HF639, gives us this reality: eminent domain abuse for CO2 pipeline projects is not addressed in their amended version, which does not in any way help landowners in their current struggle.
I am grateful that in the House we have a grassroots approach to our priorities and positions. From the pesticide bill to the fight for landowner rights against the use of eminent domain for the CO2 pipeline projects, and everything in between, we do not get our marching orders from the top. Rather, we have detailed discussions based upon the concerns we are hearing at home, and decisions and priorities of the elected members of the House Republican caucus are delivered to leadership in a way that honors the voices of the people. This grassroots approach is why we did not advance the pesticide bill, and although we welcome further discussions with the Senate, we will not accept pretense when it comes to protecting the fundamental private property rights of the citizens of Iowa.
