IN-DEPTH: Iowa Law Allowing Pipeline Companies to Inspect Private Property Ruled Unconstitutional

Soybean crops are seen ready for harvest at a farm in Ottumwa, Iowa, on Oct. 5, 2019. Kia Johnson/Reuters

With three separate projects in the works, thousands of miles of carbon capture pipeline are planned across Iowa. As maps of these pipelines come into focus, landowners are resistant to allowing pipeline companies to survey their private property, a first step to seizing easement rights through eminent domain.

Summit Carbon Solutions envisions building the Midwest Carbon Express, a 2,000-mile web of pipelines in five states: Iowa, Minnesota, Nebraska, South Dakota, and North Dakota. The project would pull carbon from more than 30 ethanol plants, liquify it, and send it to North Dakota where it would be buried in the rock about a mile underground, where it would stay permanently.

Wolf Midstream plans a 280-mile carbon dioxide sequestration pipeline that will pipe liquid carbon dioxide (CO2) from Cedar Rapids to Decatur, Illinois.

Navigator CO2 Ventures plans the Heartland Greenway carbon capture, utilization, and storage system—a 1,300-mile pipeline network—to move and permanently store the carbon in secure underground sites being actively developed in south-central Illinois, according to the company website. The multi-billion-dollar project will weave through Iowa, Illinois, Minnesota, Nebraska, and South Dakota.

These companies need easement agreements from thousands of landowners all along their projects to get approval from the Iowa Utility Commission to build.

No Compensation

In Clay County, Martin Koenig did not want to allow Navigator to survey his land, so Navigator went to court seeking court-ordered access to his land without Koenig’s consent.

Navigator testified that it would be on Koenig’s land at least four times, to perform four types of surveys: a civil survey, a biological/environmental survey, a cultural survey, and a geotechnical survey. The work would be done by third-party contractors and involve digging holes to look for historic and prehistoric artifacts, inspecting any water crossings and habitats, and looking for endangered species.

As for the geotechnical survey, it would involve a team of three to six people using a truck with a mounted drill to probe holes between two and four inches wide and 20 to 200 feet deep. This testing takes around eight hours. After drilling, the holes are filled in with soil and bentonite.

Iowa Code Chapter 479B.15 gives the company the authority to go onto Koenig’s land for survey operations without his permission and without payment, Navigator said in court papers.

Koenig countered that the Iowa law violates the U.S. Constitution.

Judge John Sandy of the Third Judicial District of Iowa agreed in a May 3 ruling that the Iowa law is unconstitutional.

“The Fifth Amendment of the United States says private property shall not be taken for public use unless just compensation is paid,” Brian Jorde, managing lawyer at Omaha, Nebraska-based Domina Law Group, who represents Koenig, told The Epoch Times.

“Each state has its version of that, and we challenged it under the Iowa Constitution. And so, if the law doesn’t provide for just compensation for the taking, then it’s an unconstitutional law on its face because it violates the provision of the state and federal Constitution that says any taking requires just compensation determination. So as soon as you determine that this is a taking of their rights, that’s step one. Step two is, ‘Okay, it’s taking—now there has to be just compensation.’ The [Iowa law] didn’t provide for either of those. They tried to argue it’s not even taking—‘We can just do this because we say so and we don’t have to pay you for the entry.’”

In light of this decision, Jorde says, there is no need for landowners to take phone calls or entertain surveys from carbon capture companies.

“I would just be saying, ‘No, we’re not interested in any surveys,’” Jorde said.

The Iowa Chapter of the Sierra Club environmental organization is pleased with the decision.

“The underlying question of all of these lawsuits is, ‘Is Iowa’s survey law even constitutional?’” Jessica Mazour, conservation program coordinator for the Iowa Sierra Club, told The Epoch Times. In previous, similar cases, judges have only ruled about the survey in that case, she said.

“But in this case, the judge went that far. The judge actually ruled that the Iowa survey law is unconstitutional. I think every other landowner in the state has really solid, strong ground to stand on to refuse these surveys because it is considered a taking of their rights without just compensation.”

The Epoch Times reached out to Navigator for comment, including on whether or not it intends to appeal, but did not receive a response by press time.

Why Carbon Capture?

Enormous government subsidies promise private companies that carbon capture is the cash cow of the future. Large-scale carbon sequestration projects receive federal tax incentives, the federal Carbon Capture and Sequestration tax credit, also called the 45Q (pdf).

The credit was worth up to $50 per ton for CO2 captured and sequestered before the Inflation Reduction Act. But since Congress passed the act, it has jumped to $85 a ton.

Consider the math of the Summit Carbon Solutions project, which will be the largest carbon capture and storage project in the world, according to the company’s website.

The project will have the capacity to capture and permanently store up to 12 million tons of CO2 every year. When it started pursuing the project, the 45Q was at $50 a ton.

At that rate, Summit would have gotten $600 million per year in taxpayer money. But at the new rate of $85 a ton, the same project will net $1.02 billion in incentives from taxpayers.

“That’s the whole reason we’re seeing these things. It’s the profits. And they‘ll never say that,“ Mazour said. ”They’ll go as far as to say that without the tax credits, their projects are not possible. But they won’t say that’s the core reason.

“At first, this was all about climate change. They said, ‘We’re going to save the planet. We’re going to solve climate change. We’re going to capture the emissions.’ And then when that didn’t go over so well and everyone said, ‘Well, you’re actually going to do enhanced oil recovery or all this other stuff,’ then they switch their argument. ‘We need these pipelines because ethanol is going to die without them, and this is going to help all the farmers.’”

However, she said, when farmers pointed out that profits would go to carbon capture companies, not to farmers, they changed the reason for carbon capture again.

“Now, their reason for these pipelines is, ‘This is a commodity and we’re going to be a common carrier, and we’re going to sell the CO2.’ Their reason keeps changing. If this was really about climate change, they'd be sticking to that argument still today, and they’re not. The whole thing is about these tax credits. And they just got a huge increase.”

Pipelines Aplenty

In some cases, landowners have more than one pipeline project cutting through their property, and more pipelines may be on the way.

In a new partnership signed last month, Nebraska, Missouri, and Iowa have jointly submitted a grant application with the U.S. Department of Energy for funding to establish the Mid-Continent Clean Hydrogen Hub in the tri-state region.

The hub, created through a memorandum of understanding signed by the three states, makes a regional partnership around their hydrogen industries and allows them to apply for federal funds, several press releases about the application said.

It also commits the three states to support the Hub for funding under the 2021 Infrastructure Investment and Jobs Act.

“This partnership will help grow Nebraska and the Midwest’s economy by opening the pathway for billions of dollars of new investment into our community and hundreds of new, good-paying jobs,” said Nebraska Governor Jim Pillen in a statement.

The partnership plans to address pipeline safety, leak minimization, and to find pathways for new pipeline construction, the states said in a statement from their governor’s office.

The federally funded Regional Clean Hydrogen Hubs program–or H2Hubs–includes up to $7 billion to establish six to 10 regional clean hydrogen hubs across America.

It all comes through the newly created Office of Clean Energy Demonstrations (OCED), which was established in December of 2021 as part of the Bipartisan Infrastructure Law.

“Clean hydrogen hubs will create networks of hydrogen producers, consumers, and local connective infrastructure to accelerate the use of hydrogen as a clean energy carrier that can deliver or store large amounts of energy,” according to the OCED website.

According to the website, OCED is “to accelerate clean energy technologies from the lab to market and fill a critical innovation gap on the path to achieving our nation’s climate goals of net zero emissions by 2050.”

OCED’s mission is to “deliver clean energy demonstration projects in partnership with the private sector to accelerate deployment, market adoption, and the equitable transition to a decarbonized energy system.”

In addition to clean hydrogen hubs, OCED is also working toward advanced nuclear reactor demonstration projects, large-scale carbon capture pilot projects, clean energy demonstration programs on current and former mine land, and energy improvements in rural or remote areas.

It will also allocate $6.3 billion to the industrial demonstrations program, which will fund projects that focus on the highest emitting and hardest-to-abate industries where decarbonization technologies can have the greatest impact, its website said. Those industries are iron and steel, cement and concrete, chemicals and refining, food and beverage, paper and forest products, aluminum, other energy-intensive manufacturing industries, and cross-cutting technologies.

The OCED will also fund long-duration energy storage demonstrations and regional direct air capture hubs.

Three days after publication, Andy Bates with Navigator’s media relations team told The Epoch Times the company will appeal the ruling, and provided this statement: “We believe the ruling is a deviation from existing precedent. Similar survey statutes have been recently reviewed and deemed constitutional by courts in surrounding states. We remain committed to engaging in open and transparent communication with landowners and interested stakeholders. The vast majority of our surveys have been completed through voluntary collaboration with landowners and tenants. We remain committed to upholding the highest standards of safety and integrity in all of our operations. Navigator plans to appeal the ruling and believes that further review will uphold the constitutionality of the statute, aligning with the conclusions reached by courts in neighboring jurisdictions.”