IN-DEPTH: Iowa Supreme Court Will Likely Hear Challenge to Land Surveys on Private Property

Carbon capture companies say state law allows access to private land

A tractor crossing an Iowa field for spring corn planting. Courtesy of Iowa Corn Growers Association

An Iowa Judge recently ruled in a Clay County case that a state law regarding access to private property for land surveys is unconstitutional. Another judge in a similar Hardin County case determined on May 10 that the same law is constitutional.

Brian Jorde, managing lawyer at Domina Law Group in Omaha, Nebraska, who represents individuals in both cases, told The Epoch Times that he believes constitutionality will ultimately be determined by the Iowa Supreme Court.

The disagreement is over Iowa Code Chapter 479B.15, which gives companies the authority to go onto private property for survey operations without permission or payment.

Many land parcels are being surveyed as a first step for private carbon capture pipeline companies to seize easement rights through eminent domain.

Jesse Harris, spokesman for Summit Carbon Solutions, told The Epoch Times that judges in several cases have upheld the right to access properties for surveys.

“The decision in Hardin County is just the latest example of courts reaching this same conclusion. Two courts in South Dakota upheld similar survey access statutes. One court in North Dakota did as well, plus this latest one in Iowa,” Harris said.

Summit is the plaintiff in the Hardin County Case. The Clay County case involves Navigator CO2 Ventures, another carbon capture company, which told The Epoch Times it intends to appeal in that case.

“The decision in Clay County, if it stands, would impact all linear infrastructure including roads, power lines, natural gas lines, everything,” Harris said. “The implications of this change are incredibly far reaching and I think it’s very fair to say it will adversely impact investments in Iowa and efforts to sustain/enhance our economy. This decision wouldn’t just impact CO2 projects.”

Carbon Capture Projects

In Iowa and surrounding states, at least three projects are proposed, involving the construction of thousands of miles of carbon capture pipeline.

Summit Carbon Solutions is planning 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, liquefy 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 is planning a 280-mile carbon dioxide sequestration pipeline that will pipe liquid carbon dioxide (CO2) from Cedar Rapids to Decatur, Illinois.

The Midwest Carbon Express is a 2,000-mile web of carbon-capture pipelines proposed by Summit Carbon Solutions. Courtesy of Summit Carbon Solutions

Navigator CO2 Ventures has plans for 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 in south-central Illinois, according to the company website. The multibillion-dollar project will weave through Iowa, Illinois, Minnesota, Nebraska, and South Dakota.

The Constitutional Question

The Fifth Amendment of the United States says private property shall not be taken for public use unless just compensation is paid.

“Each state has its version of that, and we challenged it under the Iowa Constitution,” Jorde previously told The Epoch Times. “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, ‘OK, 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.’”

Here, “taking” is the taking of the right to be compensated for allowing a company onto private property, and through that, the taking of the land owners’ right to say “no” to having a company on their land.

But in the Hardin County case, Judge Amy Moore of the 2nd Judicial District Court of Iowa said the Iowa law is not a “taking” because surveying and examining land does not create a permanent physical occupation of the land.

“In particular, the court found that even if survey access constitutes a taking, the access provided for in [Iowa law] is still constitutional because the statute provides for the payment of damages,” Harris said.

The Iowa Corn Growers Association says these projects have been difficult for members.

“We understand and respect our member’s landowner rights and the need for proper protection while also valuing the implementation of carbon capture and sequestration pipelines to lower the carbon-intensity scores of ethanol plants,” the association told The Epoch Times in a statement.

“By supporting the entirety of the current permitting process outlined in the Iowa Code for utility projects regulated by the Iowa Utilities Board we set forth the precedent that both public and private entities must follow negotiation procedures that have been in place for years regarding utility projects. We know that our farmers have strong feelings on both sides of this decision, making it a difficult one, and respect that landowners have the right to receive just compensation for the taking of property and the right to participate in good-faith negotiations with acquiring companies – including those with the carbon pipeline.”

Pipelines Payoff

Carbon capture is a recent concept being encouraged by the federal government through the federal Carbon Capture and Sequestration tax credit, also called the 45Q.

The credit is worth up to $85 per ton for of CO2 captured and sequestered. Summit Carbon Solutions—advertised as the largest carbon capture and storage project in the world when it is completed—will have the capacity to capture and permanently store up to 12 million tons of CO2 every year. At $85 a ton, the project will net $1.02 billion in tax incentives from taxpayers.

Before a pipeline is built, companies must have easement agreements on the lands where they plan to build.

“Project wide, landowners have signed voluntary easement agreements accounting for nearly 70 percent of the proposed project,” Harris said of the Summit project. “This overwhelming level of support is a clear reflection that [landowners] 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.”

Carbon Credits

Summit Carbon Solutions announced in April that it signed a multiyear agreement to sell Carbon Dioxide Removal credits (CDRs) to the NextGen CDR Facility.

In a statement, NextGen announced the purchase of 193,000 tons of CDRs from three projects, including a leading U.S. direct air capture project and a Finnish biochar manufacturer, making this one of the largest CDR transactions to date.

NextGen is a joint venture between South Pole and the Mitsubishi Corporation, and backed by founding buyers Boston Consulting Group, LGT, Mitsui O.S.K. Lines, Swiss Re, and Union Bank of Switzerland (UBS). NextGen says it is creating one of the world’s largest diversified portfolios of CDRs, with plans to purchase over 1 million tons of CDRs by 2025.

Working with NextGen brought some verification tasks for Summit. This week Summit announced ties to Gold Standard for the Global Goals (GS4GG).

“To meet stringent verification requirements, Summit has developed a methodology for biomass carbon removal and storage that will be reviewed by Gold Standard,” Harris said. “Gold Standard is the leading registry through which CDRs are verified and generated to ensure project quality and sustainable development goals are met.”

“This is an important step for Summit’s participation in the voluntary carbon market, and we are thrilled to be affiliated with GS4GG,” said Ben Nelson, Director of Carbon Programs at Summit Carbon Solutions in s statement. “We recognize the critical role that transparency and stakeholder consultation play in the development of new methodologies, and we look forward to receiving feedback from stakeholders.”

GS4GG are 17 Sustainable Development Goals “to transform the world” developed by the United Nations. Although U.S. citizens never voted on them, these goals are what is driving the accelerated change in the world, such as the move to electric vehicles.

These are the 17 sustainable development goals (SDGs):

• GOAL 1: No Poverty
• GOAL 2: Zero Hunger
• GOAL 3: Good Health and Well-being
• GOAL 4: Quality Education
• GOAL 5: Gender Equality
• GOAL 6: Clean Water and Sanitation
• GOAL 7: Affordable and Clean Energy
• GOAL 8: Decent Work and Economic Growth
• GOAL 9: Industry, Innovation and Infrastructure
• GOAL 10: Reduced Inequality
• GOAL 11: Sustainable Cities and Communities
• GOAL 12: Responsible Consumption and Production
• GOAL 13: Climate Action
• GOAL 14: Life Below Water
• GOAL 15: Life on Land
• GOAL 16: Peace and Justice Strong Institutions
• GOAL 17: Partnerships to achieve the Goals