Iowa landowners push to restrict eminent domain for CO2 pipelines

Landowners and environmental activists gathered in the Iowa Capitol last week seeking to lobby legislators to restrict carbon dioxide capture pipelines that are in the works across the state.

Dressed in red and sporting signs and pins decrying the use of eminent domain and CO2 pipelines, the activists have become a recurring sight at the Capitol as they hope to persuade lawmakers to slow the march of three pipeline companies seeking permission from the Iowa Utilities Board to capture carbon from Iowa ethanol plants and shuttle it underground to repositories in other states.

Proposed pipeline-related legislation in this session mostly has come from Sen. Jeff Taylor, a Republican from Sioux Center, though none of the bills he has proposed has advanced. Taylor has filed five bills related to pipeline restrictions:

• Senate File 100 requires pipeline companies seeking eminent domain permission to disclose investors

• Senate File 101 eliminates granting eminent domain authority for hazardous liquid pipelines

• Senate File 102 repeals the law allowing access to land for surveys for proposed pipelines

• Senate File 103 requires pipeline companies to gain permission from landowners before entering into easement negotiations

• Senate File 104 requires pipeline companies to have 90 percent of easements granted voluntarily before using eminent domain.

Taylor’s crusade to restrict the power of pipeline companies is based on support for landowner rights, he said, not an opposition to the companies or their mission. He said he’s sympathetic to the effort to bolster the ethanol industry, but he opposes the use of eminent domain to acquire easements to achieve it.

“I’m not necessarily opposed to people having those pipelines run through their land, but it should be voluntary,” he said. “It should not be using the power of government to force them or coerce them into granting an easement. The constitutional standard is eminent domain for public use. This isn’t a public use; it’s not a public utility,” he added.

Taylor’s bills are filed in the Senate Commerce Committee, and the activists said they were hoping to encourage the committee’s chair, Sen. Waylon Brown, R-Osage, to schedule public hearings.

“Democratic process involves subcommittees where people can weigh in and express their opinions, and denying that to people who are impacted by the biggest things happening to Iowa is a disservice to all Iowans,” said Jess Mazour, conservation program coordinator for the Iowa chapter of the Sierra Club.

Brown did not respond to a request for comment.

Landowners want to restrict eminent domain

The bill banning eminent domain for pipeline companies was the chief interest of the coalition gathered at the Capitol, many of whom are refusing to sign voluntary easement negotiations with the pipeline companies seeking to build through their land.

Carbon dioxide pipelines are regulated by the Iowa Utilities Board. The companies would have the authority of eminent domain — the taking of private property, with compensation, for projects that benefit the public — if granted by the utilities board.

Two of the developers have asked for that permission. A third, planning a route that includes Linn County, has not filed an application yet.

Opponents argue that, as privately owned projects, the pipelines don’t serve a public good and should be denied the authority.

“It’s really strongly offensive to us as people when the government is going to allow our land to be condemned, just for the sake of private profits and not for the good of our communities,” said Jessica Wiskus, a landowner from Linn County.

Landowners also said they’ve felt harassed by pipeline company surveyors going on their land without permission. Dan Wahl, from Dickinson County, is one of several landowners being sued by Summit Carbon Solutions for refusing entry to his land.

“They’ve demanded since Day One that they’re going to take my land, whether I agree to it or not,” Wahl said.

Iowa law gives pipeline companies and public utilities the right to survey land along a proposed route after giving 10 days’ notice by mail to the landowner. Under those conditions the entry is not deemed a trespass.

But a lawyer representing Wahl and several other landowners is arguing in court that the law allowing entry is unconstitutional. One of Taylor’s bills would remove that provision entirely.

“I think the pipeline companies have a point,” Taylor said. “The way I read Iowa Code, they seem to have that right at the moment. But I don’t think that’s proper, I don’t think it’s appropriate. So I would like to see the law changed so that would be trespass without permission.”

Ethanol industry backs pipelines

Three CO2 pipeline projects are being proposed in the state: Summit Carbon Solutions’ Midwest Carbon Express plans 680 miles of pipeline across 29 northern, western and central counties. Wolf Carbon Solutions’ pipeline would cover four counties in Eastern Iowa. Navigator CO2 Ventures’ Heartland Greenway would cover 900 miles from the northwest to southeast corners of the state, with offshoots along the way.

The projects are intended to capture carbon dioxide emitted from ethanol plants to store deep underground in either Illinois or North Dakota in an attempt to lower emissions created by the plants.

For the ethanol industry, reliance on CO2 pipelines could be the difference between survival and closing down, Iowa Renewable Fuels Association Executive Director Monte Shaw told lawmakers.

States such as California and Oregon have mandated clean fuel standards, and federal tax credits bolstered by the recent Inflation Reduction Act will improve ethanol’s profitability if they meet certain low-carbon levels. Shaw said these pressures mean without a mechanism of lowering ethanol’s carbon intensity, ethanol production would likely move to a state where plants have access to carbon pipelines.

“There is a very real, very new dynamic in our economics that is going to make or break ethanol production over the next five years,” he said at a hearing of the House Environmental Protection Committee. “And Iowa has the most to gain from this new economic reality, and it has the most to lose from not aligning.”

But to be built, the pipelines need to go across hundreds of miles of private land, and some landowners are not ready to allow their land to be used for the projects.

Summit and Navigator have both indicated an intent to use eminent domain, if granted, for the projects, but they have not finalized the extent of their request as they work to obtain voluntary easements. Summit Carbon Solutions, which is the farthest along in the permitting process, has received voluntary easements for more than two-thirds of the proposed route in the state, or 1,060 Iowa landowners, Summit spokesperson Jesse Harris said in an email.

“This overwhelming level of support tells us Iowa landowners along the route view the project as critical to supporting the state’s most important industries — ethanol and agriculture,” Harris said. “We look forward to continuing to work with landowners, stakeholders, and policymakers to advance our nearly $987 million investment in Iowa's future.”

Andrew Bates, a spokesperson for Navigator, said in an emailed statement that Iowa has “one of the most robust, thorough processes already in place” for pipeline construction, and the company does not want to see changes to that process.

“We are committed to working collaboratively with landowners and negotiating in good-faith to secure as much of the project footprint in a voluntary fashion as possible,” he said.

Representatives for Wolf Carbon Solutions, on the other hand, have said they don’t plan to use eminent domain for the project. Wolf intends to build a pipeline connecting ADM plants, including the one in Linn County. The company has been holding public information meetings and is expected to file its application with state regulators soon.

Taylor said he has received pushback from ethanol companies in his Northwest Iowa district for introducing the legislation.

“They’re primarily looking at it from a point of view of making money for themselves and for their companies and for their co-ops, and that’s fine, but I have a broader perspective,” he said. “Looking out for good government, looking out for constitutional government.”

House Republicans to introduce legislation

While Taylor’s proposals have not seen action in the Senate, Republican House Speaker Pat Grassley of New Hartford said he expects House Republicans will file a bill addressing the use of eminent domain and carbon pipelines, but he left details sparse on its contents. He said he hasn’t had a conversation with the full House Republican caucus on what they would support.

“I want to have a conversation with the caucus before I come out and say what that would be,” he said. “I want to make sure there's a level of comfort.”

Democratic Senate Leader Zach Wahls of Coralville said discussions around pipeline regulations have been happening without Democratic input despite Democrats’ interest in finding a bipartisan policy to address landowners’ concerns.

“Republicans have not been willing to have that conversation,” he said. “They’re trying to handle things purely internally, so until there is a decision by Republican leadership to try to have a bipartisan dialogue about this, there’s no compromise possible.”

The Sierra Club’s Mazour said she thinks there is enough support to pass a bill restricting eminent domain rights for pipeline companies.

“We have enough votes in both chambers, between the Democrats and Republicans, to get these bills passed,” she said. “It’s going to be, is there a will from leadership to put landowners and Iowans over these pipeline companies.”