After a little vacation from writing newsletters, I’m back with a look at 2 major decisions that have come down: one from the Iowa Utilities Board and one from the Iowa Supreme Court.
A Sad Day
Last Tuesday the Iowa Utilities Board (IUB) issued a decision in which they approved the permit application of Summit Carbon Solutions and allowed them to exercise the power of eminent domain to build a pipeline which will capture carbon dioxide from ethanol plants and store it underground in a location yet to be determined in North Dakota.
“Public Use”
This is a sad day for every farm owner and every homeowner and property owner in the state of Iowa. The IUB found that this pipeline project had a legitimate “public use” as required by our Constitution and met the requirement of being for the “public convenience and necessity” as required by Iowa law. Therefore, the IUB said the power of eminent domain could be exercised.
The IUB says that the legislature has declared CO2 pipelines to have a public use. That is questionable. I don’t see that. Just because Iowa has laws governing CO2 pipelines does not mean they have a public use. This project is a private project. We have laws governing private use projects as well as public use projects.
And for the IUB to say that Summit is opening up access to anyone who would be a relevant user of the pipeline and therefore that makes it be of public use is missing the point. The question the IUB should answer should be: of what public use is it to store carbon dioxide underground?? There is no public use for that. What does that do for anybody? Public use should be for projects like building roads, hospitals, or schools or installing a pipeline to bring oil or gas to homes and businesses.
The IUB allowed the consideration of combating climate change to provide some weight in favor of Summit. To say the pipeline is needed to fight some aspect of man-made climate change is still highly debatable and the science underlying those beliefs is clearly not settled. Therefore, certainly no government action that allows for eminent domain should rest on a belief in ideas based on speculation and incomplete knowledge.
“Public Convenience and Necessity”
The IUB also stated that the fact that the federal government is incentivizing the capture and sequestration of carbon dioxide is a factor that helps Summit meet the Iowa law requirement that the project should be for the “public convenience and necessity”. What the federal government incentivizes has absolutely nothing to do with what is for public convenience and necessity! The federal government has a very checkered record of promoting policies that are for “public convenience and necessity”! Iowa’s policies should not necessarily follow what the federal government does as it is sometimes bad policy.
The IUB also allows the speculation on the impact to the ethanol industry to weigh in favor of Summit meeting the requirement of the “public convenience and necessity”. However, that is only speculation and an economic interest. Our constitutions were written specifically to keep economic power from being a factor in deciding whether to use the power of eminent domain. Therefore, I do not believe the ethanol economic issue qualifies for consideration regarding the use of eminent domain.
Conclusion
In sum, this is a serious erosion of the private property rights we enjoy as Americans and Iowans under the Constitution. I could not be more disappointed that the Iowa Utilities Board, despite what I believed to be overwhelming compelling evidence to the contrary, approved the use of eminent domain authority for Summit Carbon, to execute this CO2 pipeline project – and, to add insult to injury, to do it with your federal taxpayer money to boot. And by Summit’s own admission they could not do this project without your money!
Keep in mind Summit asked for and the IUB is allowing eminent domain to be enforced on about 900 parcels of land and about 450 farmers and landowners across the state of Iowa! Let those numbers sink in.
Our own federal government has endangered our private property rights, with the help of the Iowa Utilities Board! The overwhelming majority of Iowans oppose this boondoggle. This is plainly a form of “lawfare” being waged against ordinary Iowans. I will continue to oppose this proposal, as will many others, and plan next steps in the courts and in the legislature in response to the IUB’s decision. Iowans can be assured this is not the final word on this issue.
A Happy Day
Last Friday, the Iowa Supreme Court upheld the constitutionality of the heartbeat law! This law, passed in 2018 and again in 2023, protects an unborn baby from abortion from the time a heartbeat is detected. The court removed the temporary injunction on the heartbeat law and now the state will be free to enforce it. Further, the court reaffirmed that there is no fundamental right to abortion.
And for the first time, the high court said that courts must use the “rational basis” standard to evaluate pro-life law – the standard most favorable to life for the unborn! (This is the standard of review used by courts to evaluate most other laws.) What the “rational basis” standard means is that if a law is challenged in the courts and the legislature can show a legitimate state interest, then the courts will allow the law to stand. In this case the legitimate state interest is to respect and preserve unborn life.
The decision was 4-3. Justice McDermott wrote the majority opinion and was joined by Justices McDonald, May, and Oxley. They are the newest justices and were appointed by Governor Reynolds. The 3 in the minority were Chief Justice Christensen, and Justices Mansfield and Waterman. Those justices have been on the court the longest.
Caution: The justices remanded (sent back) the case to district court. The paperwork will be processed and go back to the district court. The temporary injunction will then be removed in district court. This will take about three weeks. Bad news-Planned Parenthood may yet still fight it again! Good news-courts have to use the rational basis standard and that makes it almost certain unborn babies win. The Iowa Supreme Court has tipped the legal landscape in their favor!
Other things to keep in mind: The abortion pill is still accessible by mail and on the black market. The heartbeat law does not touch that and nothing else yet in Iowa law prevents the use of this option. It should also be noted this law does not touch at all on IVF. Lastly, even though protections for the unborn have come a long way, remember we still don’t yet protect babies from conception.
All in all, today is a great day for unborn babies in Iowa! We have been waiting a LONG time to get this ruling! Thank you to all who prayed and worked all these years for life!!
This ruling restores the proper separation of powers and paves the way for the legislature to protect life going forward. The court has given us the green light! I will continue to work with others as I always have for strong protections for unborn babies, mothers, and families in the future! Strong families are our future.
The Iowa Leglislature needs to pass a resolution that CO2 is a requirement for food production and its presence in our atmosphere must not be impeded.