The argument that county ordinances should be overruled to build a carbon dioxide pipeline in North Dakota has “far-reaching implications” and should be discussed during a public hearing, according to landowners who oppose Summit Carbon Solutions’ project.
The company seeks to build a roughly 2,000-mile pipeline network in five states to transport captured carbon dioxide from ethanol plants to North Dakota for underground sequestration.
The North Dakota Public Service Commission unanimously denied Summit a permit for its pipeline in August because the company failed to show it minimized the impact of the project on residents.
After the denial, the commission agreed to reconsider Summit’s permit application. The company has made numerous changes to its route to assuage landowners and those in the Bismarck area who said the route came too close to the city and might impede development.
As part of that reconsideration process, Summit has asked the commission to invalidate ordinances in Burleigh and Emmons counties that restrict how far pipelines can be placed to cities, houses, livestock facilities and other sites, arguing that they are so restrictive they prevent Summit’s proposal.
The company wants the commission to rule on that request before any future hearings because it is a crucial issue to its project. But a group of landowners said the issue is so important it deserves a hearing itself.
“This is a matter of intense public interest, and the commission’s ruling will impact the powers and rights of the public’s elected officials,” wrote David Knoll, one of the affected landowners’ attorneys. “Both the argument and the analysis should be public.”
Those who have sought to uphold the ordinances have said state legislators intended to allow counties to restrict the siting of pipelines and that Summit is exaggerating the effects of the two counties’ ordinances.
The company cites one element of a state law that says “a permit for the construction of a gas or liquid transmission facility within a designated corridor supersedes and preempts any local land use or zoning regulations.”
It’s unclear when the commission will rule on the landowners’ request. It has yet to set a schedule for the reconsideration process, and state law does not dictate how long that process should take.
A Lyon County landowner in the path of Summit Carbon Solutions’ proposed carbon dioxide pipeline system alleged on Tuesday that the company punished him for not signing an easement by choosing a less-desirable route through his property.
Gregory Kracht was among several landowners who testified at the start of the fifth week of the company’s evidentiary hearing with the Iowa Utilities Board. They are among the first of dozens of remaining landowners who are subject to eminent domain requests from the company and have yet to testify.
Those requests could force easement agreements that would allow Summit to build and operate its pipeline on land it doesn’t own.
The company wants to lay more than 2,000 miles of pipe in five states to transport captured carbon dioxide from more 30 ethanol plants to North Dakota for underground sequestration.
The IUB has indicated it wants to conclude the hearing by the end of this month, but those who have yet to call witnesses say that is unlikely. Many of those yet to testify are farmers, and their ability to participate might be complicated by harvest season, which has begun.
Landowner concerns
Those who testified on Tuesday said Summit declined to adjust its route to avoid them despite adjacent landowners who are willing to host the project, and despite their concerns about locating the pipeline in a flood-prone area and near a potential residential development.
Reluctance to change the pipeline route was part of the reason North Dakota rejected Summit’s permit application last month. The company has since made hundreds of adjustments to the route in that state.
“Over the past two years, Summit Carbon Solutions has made approximately 3,000 adjustments to our project route based on feedback from landowners, policymakers, and other stakeholders or to avoid identified sensitive areas,” said Sabrina Zenor, a spokesperson for the company. “That deliberate approach is part of the reason why landowners in Iowa and across the Midwest have embraced our project.”
Kracht, the Lyon County landowner, testified that he bought land near the Missouri River more than 10 years ago as an investment. He said he paid “too much” for it but thought he could turn a profit by selling plots to people for their homes.
“The idea behind paying too much for it, in my opinion, was because there was great potential in developing it because (it is) picturesque and just the lay of the land,” Kracht said.
County records show he bought about 180 acres of land for nearly $1 million in 2011.
Kracht said after he initially outright rejected signing an easement, he reached a tentative agreement with the company’s agents for a different route on his property. He said the original route would block road access to more than half of the property.
But Kracht said the company later reneged on that route change when he offered a counterproposal during negotiations.
“They had the route back where it wouldn’t work,” he said. “It seemed as a punishment to me for not agreeing with them at the time.”
A Palo Alto landowner who farms land near the Des Moines River said the pipeline should be moved across the river because his property is prone to flooding that could lead to a pipeline rupture.
Jamie Moser testified that heavy rainfall floods his farmland near the river at least every other year and that standing water can persist for months. When the river floods, it creates new channels on the land that in the past have been two feet deep, he said.
“This is like the worst place to put a pipeline,” Moser said.
The federal Pipeline and Hazardous Materials Safety Administration issued an advisory in 2019 that warned pipeline operators to closely monitor flooded areas for signs of shifting ground.
“Operators should be aware that severe flooding, river scour, and river channel migration may create unusual operating conditions that can adversely affect the safe operation of a pipeline,” it said.
Moser said landowners on the other side of the river are more willing to sign easements.
Moser also took issue with how the company’s agents have documented their contacts with him and his family. He said the agents claimed to have had face-to-face talks with his father, who previously owned the land but died in 2020.
Documenting contacts with landowners is important evidence for the eminent domain requests to show the company made sufficient effort to negotiate agreements.
David Skilling, a Kossuth County landowner, said Summit refused to move the pipeline off his property to adjacent land owned by people who have said they would sign easements.
He said he is also worried about the threat of a pipeline break in his area and is concerned that local emergency responders won’t be prepared to handle a carbon dioxide plume it might create.
Under certain conditions, such plumes have the potential to travel long distances and suffocate people and animals. Summit has declined to reveal the areas of the state it has identified that might be at risk if its pipeline system ruptures.
“There’s so much that’s being left unsaid,” Skilling said. “We don’t know about the plume. We don’t know anything about the emergency reaction.”
Board agrees to limit examinations
Questions during Skilling’s testimony elicited multiple objections from Summit’s attorney for potentially violating the rules of the hearing.
Erik Helland is chairperson of the Iowa Utilities Board. (Photo by Jared Strong/Iowa Capital Dispatch)
The primary purpose of the hearing is to allow for the cross-examination of witnesses who have already submitted written testimony, but several times on Tuesday the questions went beyond that scope.
Extraneous questions and the sometimes lengthy responses they elicit have the potential to prolong the hearing. That potential is heightened in this stage of the hearing because most of the remaining witnesses are pipeline opponents who are being mostly questioned by attorneys who represent pipeline opponents.
Erik Helland, chairperson of the IUB, said Tuesday that he will restrict questions that are likely to result in duplicitous testimony.
“District court clearly and succinctly affirmed the board’s ability to limit friendly cross (examination) and rely on pre-filed testimony heavily,” Helland said. He added: “The board will continue to restrict and run a very tight course.”
Despite that decision, an attorney for Summit gradually stopped objecting to certain questions throughout Tuesday’s testimony. Sometimes the process of objecting has taken longer during the hearing than allowing a witness to answer a question.
Legislators make an appearance
Three state legislators also testified on Tuesday, including Rep. Steven Holt, a Denison Republican who has been among the most outspoken against Summit’s proposal.
He led the passage of legislation in the Iowa House this year that would have restricted the use of eminent domain for carbon dioxide pipelines. The bill was not taken up by the Senate.
Rep. Steve Holt, R-Denison, has been an outspoken opponent of eminent domain for carbon dioxide pipelines. (Photo by Katie Akin/Iowa Capital Dispatch)
“My objection is not to the pipeline being built,” Holt said. “My objection is to the use of eminent domain to seize the property of my constituents to build something that I think is a private, economic development project and does not fit the requirements for the use of eminent domain.”
Holt is part of a group known as the Republican Legislative Intervenors for Justice. He was the group’s first witness to testify. The second was state Sen. Sandy Salmon, R-Janesville.
“The very fact that Summit Carbon is still pursuing this project in an agricultural state where landowners depend heavily on private property rights being protected to make their investments … is absolutely breathtaking,” Salmon said. “I am almost 70 years old, and I’ve never seen anything like this. To me, this is outrageous, reprehensible, brazen and shameless action and all Iowans can see it.”
Rep. Charley Thomson, a Charles City Republican, is also expected to testify for the group later in the hearing.
Separately, state Rep. Charles Isenhart, a Dubuque Democrat, testified on Tuesday that he doesn’t think Summit has adequately proven the environmental benefits of its project. He also said it might be possible to sequester carbon dioxide underground in Iowa rather than transport it with a pipeline out of state.
Ryan Clark, a bedrock geologist for the Iowa Geological Survey, testified that there might be places in the state that are suitable for sequestration. Those places would be found by drilling numerous test wells, which would be time-consuming and expensive, he said.
“It is our belief that the potential is there,” Clark said.
A new phase of Summit Carbon Solutions’ evidentiary hearing for its pipeline permit is poised to begin Tuesday.
The company plans to call its 15 witnesses to testify over the course of four days, according to the Iowa Utilities Board.
The hearing is a final component of the IUB’s process for weighing the company’s application for a hazardous liquid pipeline permit. Summit intends to construct more than 2,000 miles of pipe to transport captured carbon dioxide from ethanol plants in five state to North Dakota for underground sequestration. More than 680 miles of the system would be in Iowa.
The hearing began Aug. 22, and its first two weeks featured testimony from some of the landowners who are subject to the company’s eminent domain requests to get land easements for the project.
There were a few landowners who had anticipated testifying in the past two weeks but were unable because of schedule conflicts, said Melissa Myers, an IUB spokesperson. They can testify later this month.
Witnesses testify about evidence the board will consider from the company and others as it weighs Summit’s permit request. They are subject to cross-examination.
The landowners who have already testified object to the project on numerous grounds. They are convinced construction of the pipeline will cause irreparable damage to their farmland. They worry about having to repay money they have received by setting aside the land for federal conservation programs, which require the land to go untouched. They are concerned about the wellbeing of people and livestock should the pipeline break and release carbon dioxide, which under certain circumstances and form a dense plume of gas that can asphyxiate them. Some have future commercial or residential projects that could be impeded by the project.
Most of them decry the use of eminent domain to get the easements, which would allow Summit to construct and operate the pipeline on property it doesn’t own. Opponents argue the project doesn’t fit an eminent domain requirement that it promotes “the public convenience and necessity” in the same way of a natural gas pipeline.
There are about 950 parcels of land in Iowa for which Summit seeks the forced easements.
The project hit a roadblock last month in North Dakota, where state regulators rejected its proposed route. The company has retooled its proposal to move the pipeline farther away from Bismarck and asked the North Dakota Public Service Commission to reconsider. A decision on the request is pending.
Summit has argued that its $5.5 billion pipeline system would be a boon to the ethanol industry, ensuring its long-term viability and increasing producers’ profits. That is also important for the income of farmers because the industry is a major market for them — more than half of Iowa’s corn is used to produce ethanol.
Ethanol producers who capture and sequester their carbon are eligible for generous federal tax credits, and they also have the ability to earn more money in low-carbon fuel markets. Summit has tentative profit-sharing agreements with 13 ethanol plants in Iowa.
A Sioux County dairy farmer says she received little direction from state regulators about how to prepare for a hearing on Tuesday that might determine whether she will be forced to allow a carbon dioxide pipeline to be built across her 80 acres.
“All I got was a set of questions that they’re going to ask me,” said Nelva Huitink, who with her husband has about 90 dairy cows north of Orange City.
Huitink is among three people who are set to testify on the first day of Summit Carbon Solutions’ evidentiary hearing with the Iowa Utilities Board — the culmination of a two-year process that will decide whether the company gets permission to build the pipeline system and use eminent domain to do so. The system would span more than 680 miles in Iowa.
The IUB took the unusual step to weigh many of the company’s eminent domain requests at the start of its evidentiary hearing. That is meant to allow farmers who have not signed voluntary easements with the company and are subject to the requests to participate before harvest begins.
The peak harvest of corn and soybeans typically occurs in October, which is more than a month away, but the hearing could go for months.
To consider eminent domain requests early in the proceedings breaks with longstanding board precedent to discuss eminent domain toward the end of the hearing — after the details of the projects are discussed.
Huitink said she has kept abreast of Summit’s project by examining the documents in its electronic IUB docket.
How the hearing will be conducted this week is unclear. The Iowa Capital Dispatch sought a general overview of the first day of the hearing from an IUB spokesperson who pointed to the board’s “weekly digest” online. That only shows a list of landowners or their representatives who will testify about the eminent domain requests on Tuesday, Wednesday and Thursday.
The hearing starts Tuesday at 10 a.m. at the Cardiff Event Center in Fort Dodge. Huitink is listed as the third witness, but there is no time estimate for when her testimony might start. She was told it would likely be that afternoon.
“I have a two-and-a-half to three-hour drive to get to Fort Dodge, so I asked, ‘What if I’m late?’” Huitink said. “And they were like, ‘Well, we can’t guarantee that we’ll get you in if you’re not there when we call your name.’”
Summit proposes to connect its pipeline to more than 30 ethanol plants in five states to transport their captured carbon dioxide to North Dakota for underground sequestration.
More pipeline news
Federal officials have said such projects are crucial to meeting goals to reduce greenhouse gas emissions, but environmental groups have opposed Summit’s project because it might elongate the use of ethanol as a fuel and delay a transition to electric vehicles.
The ethanol industry is a key market for Iowa corn — more than half of it is used to produce ethanol.
Ethanol proponents pipeline proposals in Iowa by Summit and two other companies are critical to the industry’s future and would generate significant new revenue for the industry.
That’s because there are substantial federal tax credits available for ethanol plants that capture and sequester their carbon dioxide or that produce low-carbon fuels. The producers could also sell their fuels in more markets.
A study commissioned by the Iowa Renewable Fuels Association concluded that the producers could more than triple their profits with projects like Summit’s. The company has forged profit-sharing agreements with the facilities, and the terms of those agreements were recently made available to attorneys for the Sierra Club of Iowa and the Iowa Farm Bureau Federation.
The company’s evidentiary hearing will be held on Tuesdays, Wednesdays and Thursdays until it concludes, said Jess Mazour, of the Sierra Club of Iowa, who attended a pre-hearing meeting on Monday in Fort Dodge that was closed to the public. She said the IUB gave no more details of the scheduling.
Huitink, the dairy farmer, said the list of questions the IUB provided her ask about her land’s legal description, whether it has other easements, how a Summit easement would affect her and whether there are outstanding issues that haven’t been resolved.
She said Summit offered her about $100,000 for easements on her two parcels.
“I don’t want the money,” she said.
The Dakota Access oil pipeline also runs through her property, and that alone has affected her family’s ability to expand its dairy operation. Her son has considered building a new facility with automated milking capabilities, and adding Summit’s pipeline would make that improbable, Huitink said.
Opponents of the project have sought a delay from the board and from a district court judge because of pending disputes over evidence, the IUB’s jurisdiction over the project, and North Dakota’s recent denial of a permit to Summit.
The company says it has obtained voluntary easements from landowners for about 75% of its route in Iowa.
“This overwhelming level of support is a clear reflection that they believe like we do that our project will ensure the long-term viability of the ethanol industry, strengthen the agricultural marketplace for farmers, and generate tens of millions of dollars in new revenue for local communities across the Midwest,” the company said Monday.
We're fighting for our homes and our land, and for the safety of South Dakota communities just like yours. But we can't do this alone, we need your help, so if you can, pitch in and let's make some hay.
We're fighting for our homes and our land, and for the safety of South Dakota communities just like yours. But we can't do this alone, we need your help, by being informed and taking action when it matters most.
