No eminent domain solely for private gain
Democratic State Representative Chuck Isenhart represents Iowa House district 72, covering part of Dubuque and nearby areas. He is a member of the Iowa House Economic Growth Committee, the National Caucus of Environmental Legislators, and the Natural Resources and Infrastructure Committee of the National Conference of State Legislatures. The Dubuque Telegraph-Herald published a shorter version of this article on October 9.
“No eminent domain for private gain” is the catch phrase of opponents contesting three proposals for carbon dioxide pipelines in Iowa.
The Summit Carbon Solutions project would transport up to 18 million tons of the emissions each year, mainly from Iowa ethanol plants, to be buried deep in porous rock formations in North Dakota.
Why? Arguably, to keep the greenhouse gas out of the atmosphere, where it heats the air, causing climate change and weather disasters. At least that’s why the federal government is offering to pay $85 per ton for projects that capture and sequester carbon. At full capacity, that could be a $1.5 billion annual payday for Summit alone.
Owners of hundreds of parcels of land oppose the pipeline, mainly because they believe the productivity of farm ground will be lost and the integrity of drainage tiles will be damaged. Others question the safety of the pipelines.
According to Iowa law, the power to “take” or use private land may be granted by the Iowa Utilities Board (IUB) to a private company if the project has a public “use,” “benefit,” “purpose,” and is justified by a “public convenience or necessity.” So the slogan as applied to hazardous pipelines should be: No eminent domain solely for private gain.
The IUB will rule on whether the projects are necessary or convenient for the public. Whose definitions will be accepted? What evidence will be required? What previous cases will be used as precedents?
“Jobs” and “more taxes” could be used to justify any claim where a private business owner proposes to create more jobs and pay more taxes than the current landowner. If creating jobs and raising taxes were the purpose of government, the state could use eminent domain powers to effectively control all land. Beyond jobs and taxes, what makes the pipeline projects special?
The companies may claim the pipelines benefit the public simply because of the federal subsidies. Why else would taxpayers foot the bill? That circular argument overlooks that federal carbon capture, use and sequestration policy does not include the word “transport.” Do the environmental and economic impacts of moving carbon dioxide hundreds of miles by pipeline for burial lead to a significant climate benefit?
A comment made at a public meeting in Delaware County in December of 2021 suggests that even project proponents aren’t so sure. According to a Elizabeth Burns-Thompson of Navigator CO2 Ventures, their project will have “no meaningful impact” on atmospheric carbon dioxide. The purpose is to “enhance (the) economic competitiveness” of ethanol and fertilizer producers.
That’s one reason I sponsored an amendment to the climate change policy of the National Conference of State Legislatures in 2022, which passed with little dissent:
The federal government shall restrict carbon capture and storage incentives for projects that involve the transfer of carbon dioxide by interstate pipelines to those certified by state public utility commissions or other state regulatory bodies to have demonstrated, by clear and convincing evidence, that a project will:
1) result in a net life-cycle reduction in atmospheric carbon, with financial awards tied to such reductions (my emphasis), pursuant to a state’s climate action plan adopted by the legislature or approved by the governor; and
2) permanently restore damage to wetlands, woodlands, prairie, rivers, streams and other natural resources, as well as the productivity of disturbed farmland, as a result of construction, operation or future abandonment.
Taxpayers should pay for end results that benefit everyone. A “net life-cycle” analysis accounts for the climate impact of everything associated with a project’s development, construction and operation, as well as indirect and secondary impacts, including the economic and environmental risks of dedicating so much land to producing ethanol’s feedstock. Not to mention the possibility that more than a trillion gallons of groundwater would be needed every year to support carbon capture at all of Iowa’s ethanol plants.
Without such net benefit, the pipelines do not serve the public convenience, much less the public necessity of combating climate change or protecting Iowa’s other natural resources.
The Iowa Office of Consumer Advocate is charged with representing the public interest in these cases. Will Lanny Zieman address these issues? Before the books are closed on the Summit public hearing, which has been underway since August, the IUB could seek such evidence or require the pipeline applicants to provide it.
In the meantime, this we do know: Iowa has no articulated climate strategy. Iowa has no public policy supporting the sequestration of industrial carbon emissions. Not even Governor Kim Reynolds’ Carbon Sequestration Task Force report addresses the issue. So what is the public gain from hazardous carbon dioxide pipelines?
P.S.—In March, most members of the Iowa House voted for House File 565, which—according to the floor manager, State Representative Steven Holt—subjects the “sacred, fundamental birthright” of 10 percent of landowners who resist the pipelines to the 90 percent willing to sign easements, without any consideration of public necessity. The bill was incoherent. I voted against it.
I introduced two bills as alternatives. The NCSL policy was turned into House File 682, which also bars carbon dioxide piped out of the state from being used to pump more fossil fuels out of the ground and allows counties to impose setback and related safety requirements.
More important for landowners, House File 684 requires pipeline permit applicants to show that “less costly, less burdensome, or more efficient alternative(s)” do not exist. The bill funds the Iowa Geological Survey to assess the capacity and feasibility of sequestering carbon emissions within the state. Previous research suggests that sequestering carbon dioxide may work within the geological “midcontinent rift” formation that slices through Iowa, without the need for long-distance pipelines.
As an intervenor in the Summit pipeline case, I sponsored testimony by Ryan Clark of the Iowa Geological Survey, after Iowa Utilities Board members Erik Helland and Josh Byrnes asked about such prospects earlier in the hearing. Clark testified that Summit could drill test wells to determine the feasibility of carbon dioxide storage in Iowa for all its contracted ethanol plants for a fraction of the money the company has spent on easement payments to landowners. Indeed, Summit Agricultural Group contacted the Iowa Geological Survey as early as 2020 to inquire about such possibilities, but did not act on the information they received.
If such a scenario proves viable, landowners could profit annually from payments for carbon storage under their land rather than getting one-time payments for pipelines going through and damaging their land, with the associated safety concerns and emergency response capacity requirements.
If nothing else, the IUB should put pipeline permit applications on hold and require the pipeline companies to prove carbon dioxide storage in Iowa is not possible before considering whether pipe dreams can become reality.
Top photo of Chuck Isenhart provided by the author and published with permission.
