Landowner questions whether Summit carbon pipeline plan meets Iowa law - Des Moines Register

Landowner questions whether Summit carbon pipeline plan meets Iowa law

Does carbon-capture pipeline plan comply with Iowa law? Landowner, in challenge, says no.
Donnelle Eller

A northeast Iowa landowner is challenging whether Summit Carbon Solutions’ proposed carbon-capture pipeline fits the state definition of a hazardous liquid pipeline, a distinction that could complicate the Ames company's efforts to build the $4.5 billion project.

Brian Jorde, an Omaha, Nebraska, attorney representing Floyd County landowner George Cummins, said 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 in the motion to dismiss Summit's petition for a permit to build the pipeline that the CO2 the company plans to capture from ethanol plants would be in a “supercritical” phase, somewhere between a gas and a liquid.

“Carbon dioxide in the ‘supercritical’ phase is not a ‘liquid,’” Jorde said in the motion to dismiss. “Additionally, ‘supercritical’ carbon dioxide is not the same as or synonymous with ‘liquified carbon dioxide.'

“If the Iowa Legislature intended ‘supercritical’ carbon dioxide be included” in Iowa law, Jorde wrote, “it would have added the word.”

The company has until next week to respond to the motion to dismiss and declined Friday to comment.

Lawmakers are meeting in a special session beginning July 11 to consider limiting access to abortion, and could potentially be asked to clarify the board's jurisdiction. But Jennifer Zwagerman, director of Drake University’s Agricultural Law Center, said she doubted that lawmakers would be inclined to take up the issue, considering the divisions across the Republican-controlled Legislature over carbon-capture pipeline proposals. Summit and other companies seek to use the pipelines to transport carbon dioxide to sites in Illinois and North Dakota for sequestration deep underground.

Lawmakers are under particular pressure to cut off the ability of the Iowa Utilities Board to grant the companies eminent domain, which the companies could use to force reluctant landowners to sell them access to their property for the pipelines. This year, the Iowa House passed a bill that would restrict eminent domain, but the bill failed to come to a vote in the Iowa Senate.

“I'm not sure there's enough consensus that they would want to try and take something like that on,” Zwagerman said. “Particularly when they already have such a contentious issue set up for it.”

Here's what to know about Cummins' motion and its implications.

What's Summit's proposed project?

Summit filed a petition last year seeking Iowa Utilities Board approval of its request for a permit to build a 687-mile hazardous liquid pipeline across about 30 counties in Iowa. The carbon dioxide collected from ethanol plants would be compressed under pressure into what the company described as a liquid and would be transported to a sequestration site.

Two other companies — Navigator CO2 Ventures and Wolf Carbon Solutions — have proposed similar carbon-capture pipeline projects. 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?

Jorde, Cummins' attorney, points to testimony from Summit leaders at a hearing in North Dakota, where they described moving the carbon dioxide through the pipeline in a supercritical phase. His motion to dismiss provides statements from two chemical engineers who outlined the differences between a liquid and a supercritical fluid.

“When CO2 exceeds the critical point through a combination of pressure and temperature applied,” 88 degrees Fahrenheit and 1,073 pounds per square inch, “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.”

When will the board respond to the dismissal motion?

Zwagerman and others say it's unclear when the three-person utilities board will act. Jorde said he believes the board should provide an answer before a scheduled Aug. 22 hearing on Summit's request to build the pipeline.

Given the board's desire for timely action on Summit's request, it should be able to respond quickly, he said.

What is the chance the motion will succeed?

Drake's Zwagerman said the motion to dismiss will be hard to win. “It’s definitely an argument to make, but it's going to be a stretch simply because a court and the board could very easily consider this to be a type of fluid or a type of liquid, even if it's not traditional liquid carbon dioxide,” she said.

Will the motion delay the August hearing?

Zwagerman believes the August hearing in Fort Dodge on Summit's request to build the pipeline will likely start as scheduled, even if there is an appeal of the Iowa Utilities Board's ruling on the motion. And the Iowa Legislature could clarify the law during its next regular session in January, if needed, she said.

Are there other challenges?

Jorde also filed a request that the Iowa Utilities Board reconsider starting the Summit hearing Aug. 22, two months before the date the board initially had considered. 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 at about 4,000 hours — to evaluate the roughly 1,000 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's next?

The Iowa Utilities Board plans to hold a prehearing status conference Monday after its regular 1 p.m. meeting.

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