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Bills have been introduced in the House and the Senate to address the issue of the possible use of the power of eminent domain to seize farmland in the form of easements to accommodate a carbon capture pipeline project of private companies.

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Summit Carbon Solutions, LLC is proposing to construct a 706-mile carbon sequestration pipeline through 30 Iowa counties. The proposed pipelines would also extend through 4 other states: Minnesota, Nebraska, North Dakota, and South Dakota. Their goal is to finish it by 2024. The proposed project is expected to cost $5.2 billion. They refer to this project as the Midwest Carbon Express.

In their filing documents Summit Carbon stated that the purpose of the proposed hazardous liquid carbon pipeline would be to “capture carbon dioxide emissions from Midwest ethanol plants and convey such emissions through a pipeline to North Dakota where they will be permanently and safely entombed and stored in deep underground geologic storage locations.”

The company says that carrying carbon dioxide away from ethanol plants will help those plants have a lower carbon impact and thus help “fight climate change”. California is threatening to refuse to buy ethanol unless those plants lower their carbon impact.

To build the Iowa portion of the pipeline Summit Carbon must obtain a permit from the Iowa Utilities Board (IUB). Currently under Iowa law, the IUB has sole discretion to determine whether to allow a private company to build a hazardous liquid pipeline across the state. The law says the pipeline must “promote the public convenience and necessity”.

Iowa law also provides that a company granted a permit “shall be vested with the right of eminent domain, to the extent necessary and as prescribed and approved by the (IUB), not exceeding 75 feet in width”. This means the company granted the permit is allowed to use eminent domain to use the farmland for its purposes; and, if allowed, the IUB can determine the rules the company must follow in exercising the right of eminent domain.

If eminent domain ends up being used due to a private company being unable to acquire the necessary number of easements through voluntary agreement, “just compensation” must be provided to the landowner. Iowa law also requires the IUB to establish standards for the “restoration of agricultural lands during and after” the construction of the pipeline. The company has promised to restore the land to its prior condition and to pay for the first 3 years of reduced crop yields.

The next step is for Summit Carbon to hold a series of public informational meetings to inform potentially affected landowners about the proposed pipeline. That was done last fall. The information presented to landowners said that the pipeline would be buried at a minimum of 4 ft. deep from the top of the pipe.

Now Summit Carbon is in the process of approaching affected landowners to commence negotiating the purchase of easements. Those offered easement agreements should secure legal counsel to review the terms of the proposed agreement and to understand the full scope of the property rights being relinquished. Compensation and damages will be strictly limited tothe terms of any voluntary agreement. Once 7 days have passed from the time of any signed agreement, a pipeline easement is a permanent property right of the company that cannot be revoked. It runs with the land and impacts all future owners.

The IUB website showed by Feb. 22nd, there were 40 voluntary easements, which is less than 2% of the needed easements in Iowa. Summit Carbon says there are many more but they are not recorded on the website yet.

Written comments or objections to the proposed pipeline can be filed electronically using the IUB’s Open Docket Comment Form, by email to [email protected], or by postal mail to the Iowa Utilities Board, Attn: Docket No. HLP-2021-0001, 1375 E. Court Ave., Des Moines, IA 50319.

The IUB website shows about 870 comments have been received as of Feb. 22nd. This includes those of 22 counties. And about 98% of the comments are opposed to the project. Those who object cite property rights issues, health and safety issues in case of a leak, and economics issues, meaning the land where the easement is located is damaged and becomes lessproductive, underground tiling becomes damaged, and the land values suffer as a result.

To review documents filed in this docket, click on Docket No. HLP-2021-0001 to visit the IUB’s electronic filing system (EFS). For assistance with electronic filing of comments, visit https://iub.iowa.gov/how-make-filingboard or call the IUB IT Support team at (515) 725-7337.

Concluding Comments:  I co-sponsored a bill in the House that sought to address this issue. It did not even receive a subcommittee hearing. House leaders began the session with prioritizing this issue but then they dropped it shortly after session began. Similar in the Senate-it did not get through committee. Super disappointing and troubling!

While eminent domain is sometimes a necessary tool for public projects such as roads, bridges, schools and public utilities, it was not designed for private investment firms, developers and companies conducting private projects or economic development for private use.

This would be a violation of private property rights as expressed in the 5thAmendment to the U.S. Constitution: “nor shall private property be taken for public use, without just compensation.” The same is echoed by the Iowa Constitution Article 1, Section 18: “Private property shall not be taken for public use without just compensation first being made…”

Unfortunately, in 2005 the U.S. Supreme Court in a 5-4 decision in Kelo vs. City of New London approved the use of eminent domain for private companies to use for economic development and that it qualified as a “public use” under the 5th Amendment. The dissenting justices warned, “The beneficiaries (of this decision) are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.” This result is unfair and violates the clear intent and meaning of our federal and state constitutions. However, the good news is that the majority of justices said that nothing in the decision would prevent states from placing further restrictions on the use of eminent domain. That left a pathway for states to act.

In addition, questions can also be legitimately raised in this situation about the need for such a project as this as it is based on the highly debatable issue of man-made climate change. No landowner should have to risk his property rights based on a “need” that is still in dispute among scientists.

I am not against pipelines; I have supported these projects in the past as they were for public use. But this is entirely different. Our constitutions require a respect for private property rights and provide a defense for landowners against those who are more powerful. The situation landowners in Iowa are in right now is the exact situation in which our constitutions are intended to provide protection. And case law says states can act. And we should act. But we are not. Please contact House and Senate leaders with your concerns about this issue.

Author: Sandy Salmon

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