Summit carbon pipeline opponents prepare for court battle
Jul. 25, 2024 6:37 pm, Updated: Jul. 26, 2024 7:40 am
Kim Junker, who farms near Stout in Grundy County, speaks at a March 22, 2023, anti-carbon capture pipeline rally outside the Iowa Capitol in Des Moines. Groups opposing the pipeline through Iowa are asking the Iowa Utilities Commission to reconsider its approval of the project. If that fails, they say they’ll take the issue to court. (Erin Murphy/Gazette Des Moines Bureau)
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.
Rep. Charley Thomson, R-Charles City
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.
Iowans sit in the gallery of the Aug. 22, 2023, Iowa Utilities Board meeting in Fort Dodge to voice opposition to the proposed Summit Carbon Solutions pipeline through Iowa. (Des Moines Register via AP)
“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.
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