Iowa regulators tell Summit to notify landowners of eminent domain use - Des Moines Register

Iowa regulators tell Summit to notify landowners of eminent domain use

Iowa regulators order notification of landowners that pipeline firm seeks eminent domain
Donnelle Eller

Iowa regulators have issued an order to notify landowners who have declined to sell easements for Summit Carbon Solutions' proposed $4.5 billion carbon capture pipeline that the Ames company plans to seek eminent domain powers, which it could use to force them to allow the pipeline on their property.

The Iowa Utilities Board's order this week outlines the eminent domain notices that will be sent to landowners as well as officially set the hearing on granting a permit for the pipeline. Expected to last months, the hearing is set to begin at 10 a.m. Aug. 22 at the Cardiff Event Center in Fort Dodge.

The order came as Summit responded to two legal challenges that could trip up the project: a motion to dismiss and a motion that questions whether the schedule the board has set for the hearing could prevent landowners who object to eminent domain from having a fair chance to present their case.

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About 520 landowners in Iowa have declined to sign easements that give the company access to build across their property, Summit said Thursday. They are about 30% of the landowners in the project's path, the company said.

Here's what to know about the flurry of filings in Summit’s efforts to build a pipeline across nearly 30 counties in Iowa.

What is Summit proposing?

Summit is seeking the permit to build a 687-mile segment of the multistate pipeline across Iowa. It would capture carbon dioxide emissions from ethanol and other industrial agriculture plants, liquefy them under pressure and transport them to North Dakota for sequestration deep underground.

Two other companies — Navigator CO2 Ventures and Wolf Carbon Solutions — have similar pipelines proposed in Iowa. They contend the projects will lower the carbon footprint of ethanol, of which Iowa is the leading producer. That would help keep it viable amid growing restrictions on carbon emissions, which are linked to global warming.

The federal government is offering rich incentives for pipeline construction.

What is the argument to dismiss Summit's petition?

Brian Jorde, an attorney representing George Cummins, a Floyd County landowner, said in his motion to dismiss Summit's petition that the carbon dioxide the pipeline would transport isn’t a hazardous liquid, as defined in state law, which covers materials like crude oil, refined petroleum products and liquid fertilizers.

Pipelines carrying "liquefied carbon dioxide" also fall under the Iowa Utilities Board's jurisdiction. But Jorde argues that the carbon dioxide the company plans to capture from ethanol plants would be in a “supercritical” phase, somewhere between a gas and a liquid.

Two chemical engineers quoted in Jorde's motion outlined the differences between a liquid and a supercritical fluid.

“When CO2 exceeds the critical point through a combination of pressure and temperature applied, CO2 is no longer in the liquid or gas state and instead is in the different and distinct supercritical fluid state,” Jasper Hardesty of New Mexico wrote. “Liquid or liquefied carbon dioxide is not the same as supercritical carbon dioxide.”

What is Summit's response to the motion to dismiss?

Summit said federal regulators treat pipelines that carry supercritical CO2 as hazardous liquid pipelines and the American Society of Mechanical Engineers takes a similar stand. "The definition of 'hazardous liquid' includes CO2 in a supercritical fluid state, and Mr. Cummins’s interpretation flies in the face of industry practice and common sense," the company wrote.

Summit also pointed to a Hardin County district court decision issued this week that touched on the issue. In that case, District Judge Amy Moore wrote that the company's "proposed pipeline falls squarely within the definitions of hazardous liquid pipelines" under Iowa law.

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Moore granted Summit's request for an injunction, forcing landowner Kent Kasischke, also a Jorde client, to allow its surveyors access to his farm. Moore wrote that one of Kasischke's contentions ― that Summit had failed to meet the state definition of a hazardous liquid pipeline ― was a "frivolous argument."

What's the argument to reconsider the timing of the Summit hearing?

Jorde, along with the Iowa Chapter of the Sierra Club and several Iowa counties, asked the Iowa Utilities Board reconsider starting the Summit hearing Aug. 22, two months before the date the board initially had considered. In addition, the board said it would first listen to concerns from landowners targeted for eminent domain, flipping the traditional order of having them testify last.

Jorde said the switch doesn't give landowners sufficient time to prepare. He also said the utilities board staff lacks enough time — estimated to take hundreds of hours — to evaluate the parcels that could be subject to eminent domain.

"The new hearing schedule violates the procedural due process rights of ... landowners by requiring them to testify approximately four months earlier than previously scheduled and requiring them to testify about the proposed pipeline’s impact to their land before the party with the burden of proof — Summit — testifies," Jorde wrote.

What does Summit say about delaying the August hearing?

Summit said the "ordering of the testimony does not deprive ... landowners any of the typical opportunities to participate in a contested case proceeding — they will have opportunity to file pre-filed testimony and exhibits; testify at the evidentiary hearing; introduce hearing exhibits; cross-examine Summit’s witnesses; and submit post-hearing briefing."

"Due process merely requires that notice be, 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” the company wrote.

In response to the Sierra Club's request that a public hearing be held, Summit said board "is not required to take verbal public comment in any contested case proceeding before it."

"Members of the public can, and have submitted hundreds of comments" to the utilities board and spoken "repeatedly" during public comment periods during the board's monthly meetings, it said.

Donnelle Eller covers agriculture, the environment and energy for the Register. Reach her at deller@registermedia.com or 515-284-8457.