Summit carbon pipeline opponents prepare for court battle

Opponents of a sprawling carbon capture and sequestration pipeline in Iowa continue to oppose the path forward for the project, anticipating a lengthy court battle as the company works to gain approval in other states.

The Iowa Utilities Commission — formerly the Iowa Utilities Board — gave its approval to Summit Carbon Solutions last month to build a pipeline to capture carbon dioxide at ethanol plants across the Midwest and store it deep underground.

Supporters say the technology, which is intended to lower carbon emissions, will explode the market for ethanol and deliver a boost to Iowa’s economy.

In an effort to combat climate change, some states and countries have adopted a low-carbon fuel standard, and the aviation industry is seeking to develop sustainable aviation fuel, both of which could be supplied by low-carbon ethanol.

The project also will be eligible for generous federal tax credits for carbon sequestration.

Eminent domain

The pipeline has been opposed by landowners and state lawmakers who argue that eminent domain — the involuntary taking of land with compensation — for its construction is not warranted.

Environmentalists, including the Sierra Club, also have sought to block the project, arguing it will do little to combat climate change.

Since the Iowa Utilities Commission approved Summit’s application to build the pipeline in Iowa using eminent domain, several groups and individuals have filed motions to reconsider the approval. Opponents acknowledge the motions are unlikely to succeed, and they expect to challenge the decision in court if commissioners deny the motions.

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The groups have challenged the commission’s consideration of evidence in a hearing, which lasted months and included dozens of interested parties. They also have challenged the safety standards for the pipeline and the legal grounds the commission used to grant eminent domain authority for the project.

Republican Rep. Charley Thomson of Charles City, one of a group of state legislators opposing the project, said he believes the commission’s legal reasoning was flawed.

Thomson said, as many of the pipeline’s opponents have argued, that the pipeline fails to qualify for eminent domain because it does not promote the “public convenience and necessity,” a factor required under Iowa law.

He said the potential benefits of the project do not outweigh the damage done by seizing property for a private enterprise.

“We can disagree on lots of details here, but I don’t think any serious person can disagree that it’s hard to find a public purpose in all of this that justifies the sort of proposed taking they’re engaging in,” Thomson said.

The Iowa Utilities Commission found that the economic benefits stemming from a bigger market for ethanol, as well as the climate impact of sequestering carbon dioxide, weighed in favor of Summit’s approval.

Timing

Summit has until July 29 to submit a response to the motions to reconsider, and the utilities commission has 30 days to either grant or deny the requests.

Summit has reached voluntary easements with owners along 75 percent of the route, which they say shows the project has strong support from the Iowans who are most connected to the project.

In a statement, Summit spokesperson Sabrina Zenor said the company has reached out to the remaining landowners, as ordered by the utilities commission, to give them an offer consistent with what other landowners have been paid.

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“We’ve reached out to every landowner impacted by the order, both signed and unsigned, to help them understand the next steps,” Zenor said. “Our approach is grounded in transparency, open communication and fair compensation. As the Order states, we have begun outreach to the remaining landowners, starting with our last best offer.”

The 2,500-mile, five-state pipeline is planned to cover more than 680 miles in 29 Iowa counties. Summit must receive approval in South Dakota and North Dakota, where the carbon will be deposited into the ground, before building in Iowa.

Summit is awaiting a decision from North Dakota regulators, and Zenor said they plan to file a permit request in South Dakota this fall. They plan to begin construction in 2025 and begin operations in 2026.

Supreme Court ruling cited

Eminent domain is defined in the U.S. Constitution and the state constitution, but opponents have argued courts have long interpreted the government’s ability to take land too broadly.

They have pointed to a U.S. Supreme Court Decision, Kelo v. City of New London, as a bad precedent that allows governments to take land for a purpose like economic development, rather than for express public use.

Thomson said he believes the current Supreme Court, now more conservative than the court when Kelo was decided in 2005, would overturn Kelo if a dispute over eminent domain reaches the justices.

The opponents plan to sue in state court if the Iowa Utilities Commission upholds Summit’s permit, and Thomson said the case may reach the U.S. Supreme Court.

“Neither side will accept a loss from any court along the way,’’ Thomson said. “There’s so much money involved from both sides, so they’ll appeal it. That’s not to say that you’ll get a full ruling from the U.S. Supreme Court … but one way or another, somebody’s going to take it up there.”

Brian Jorde, a lawyer who represents landowners who have refused to sign easements with Summit, said he will continue to fight in court to prevent eminent domain from being used for the project. While reaching the Supreme Court is not his goal, he said it is possible the case could go there.

“There's no goal to continue this on for years and years," he said. "We simply want them to acknowledge eminent domain is inappropriate, No. 1. And if there's going to be a route, which there shouldn't be, it needs to be drastically modified.”

Even under the current standard, Thomson said he thinks the Iowa Utilities Commission overstepped its authority in granting eminent domain.

One factor commissioners used to determine the pipeline will serve a public purpose is by pointing to federal tax credits that have been created to incentivize carbon sequestration. The commission found that “the fact the federal government is incentivizing this technology, similar to the governmental incentivization of wind, solar, and ethanol,” weighs in favor of Summit's application.

But Thomson said the fact that the federal government sets something as a priority does not mean state regulators must view it as a public good.

“Think of the mischief or the damage that could cause anybody in Iowa, if suddenly anybody in D.C. with the authority to make proclamations like this, is deciding what eminent domain questions are good public policy and not for Iowa,” Thomson said.

Counties, others oppose

Several Iowa counties also filed a motion to reconsider the pipeline decision, arguing commissioners did not answer a number of questions county officials raised during the proceedings.

The proposed pipeline is set to go through an economic development zone in Floyd County, Floyd County Supervisor Mark Kuhn said. The county tried to get the commission to force Summit to reroute around the area but was denied. North Dakota regulators approved a request for a similar siting change near Bismarck.

Kuhn said the county spent $2 million to buy the site with the goal of improving it for economic development.

“The presence of the Summit pipeline coming through it exponentially reduces the opportunity for economic development growth there,” Kuhn said. “… This choice of site selection was just dumped on us.”

Several other counties have passed ordinances, some of which have been blocked in court, in attempts to regulate the pipeline siting in their borders. Counties have cited safety concerns over the potential for a rupture in the pipeline.

A 2020 CO2 pipeline rupture in Satartia, Miss., led to the evacuation of the town and sickened dozens of residents though no one died.

Part of the Iowa Utilities Commission’s order requires Summit to pay for CO2 monitors and equipment for emergency services agencies along the route in order to respond to a potential leak. Summit has said a pipeline rupture is unlikely and that its pipeline will follow rigorous safety standards and be under constant monitoring.

The Sierra Club and Bold Iowa, two environmentalist groups that have argued the pipeline will do little to address carbon emissions, said in their filings that the utilities commission was mistaken in deciding the climate impact of the project weighed in Summit's favor.

“We fully embrace aggressive, realistic solutions to the climate crisis,” Bold Iowa said in its motion. “An expansive network of CO2 pipelines is not a solution.”

The pipeline will have the capacity to sequester 18 millions of metric tons of CO2 every year, Summit has said. Several groups have raised concerns that the CO2 will be used for enhanced oil recovery, but Summit has said it has no plans to do that and the permits it is seeking are for permanent underground storage.

Change in law possible

Thomson and other lawmakers who have sought to limit the pipeline under Iowa law intend to revisit the issue during the upcoming legislative session that begins in January.

After the utilities commission granted the Summit permit, House Speaker Pat Grassley, a Republican from New Hartford, said the Legislature “must conduct a comprehensive review and update the state’s eminent domain laws.”

“We will seek feedback from Iowans on the best way forward and in the meantime, I stand ready to assist my constituents however I can,” Grassley said.

House lawmakers have passed bills three years in a row to limit the eminent domain authority of CO2 pipelines, but those efforts stalled in the Senate, where they did not have enough support from Republicans to pass.

This year, House lawmakers overwhelmingly backed a bill that would allow a party in a CO2 pipeline proceeding to ask a court to rule whether the project warranted eminent domain before it received approval from the Iowa Utilities Commission. Thomson said he’d like the Legislature to revisit that bill.

He also said he wants to consider changes to the powers and scope of the Iowa Utilities Commission.

“I think we need to take a serious look at the powers of the IUC, and how they’re being exercised,” he said. “Whether it’s appropriate to have three unelected people making these decisions.”

Comments: cmccullough@qctimes.com