This is the fourth installment in a series on carbon pipelines with the purpose of providing neutral-fact-based information.
The first blog in this series identified legislative bills introduced in Iowa and South Dakota relating to carbon pipelines while the next two examined how pipelines are regulated and the rules around eminent domain. This blog will provide an update on how state legislatures addressed carbon pipeline bills, and what that means going forward.
The 2023 legislative sessions in Iowa and South Dakota did not see any carbon pipeline-related bills passed. There was some movement in each state’s House of Representatives, however, none were able to make it out of Senate committees. In other states, like Minnesota, pipeline regulation is being handled by the Public Utilities Commission (PUC) which also did not see any carbon pipeline-related legislation passed.
The early days of the Iowa legislative session saw several bills introduced by Sen. Jeff Taylor and Rep. Jeff Shipley. Nine bills were introduced addressing issues such as eminent domain rights for CO2 pipelines, land surveying, and landowner communications from carbon pipeline companies. The bills stalled and did not advance out of their respective subcommittees.
The only bill to see considerable movement in Iowa was House File (HF) 565. Introduced by Rep. Steven Holt and 21 other representatives in the House Judiciary Committee, the bill targeted controversial issues that have been raised in other bills, such as strengthening land restoration rules, crop-yield damage rights, and requiring at least 90% of a route be acquired through voluntary easements before eminent domain can be granted. Before it was passed in the House by a vote of 73-20, the bill was amended to authorize a study committee to review Iowa law on land surveying, land restoration, and eminent domain use. The bill was referred to the Senate Commerce Committee but was never considered by its assigned subcommittee.
Similar to Iowa, South Dakota saw seven bills related to carbon pipelines introduced, but lawmakers were unable to advance them through both chambers. Issues raised in proposed legislation largely mirrored what was seen in Iowa, however, there was an additional focus on the definition of a common carrier.
Removing carbon pipelines from the definition of a common carrier would eliminate the ability of pipeline companies to gain the right to use eminent domain. This was the idea behind House Bill (HB) 1133, one of two bills to make it through the House. The other bill—HB 1230—would have required all companies to issue their final and best financial offer before condemnation proceedings. Both were voted down by the Senate Commerce and Energy Committee.
Left up to the courts
The inactivity from the state legislatures now puts courts in a position to decide on contentious issues surrounding carbon pipelines. In recent years, court cases have centered on the constitutionality of land surveying. Pipeline companies have filed lawsuits against landowners who have denied land surveyors access to their property.
In Iowa, a district court judge in Clay County ruled against a pipeline company on the grounds that Iowa’s law regarding land surveying by hazardous liquid pipelines was unconstitutional because there is no “just compensation” for the activity. Navigator CO2 Ventures, the pipeline company involved in the case, plans to appeal the ruling to the Iowa Supreme Court. Similar lawsuits have been filed in South Dakota, where a judge recently ruled the surveying law was constitutional. In response to ordinances passed to regulate the technology, pipeline companies have filed lawsuits against multiple county governments.
As mentioned in our, “Who regulates carbon pipelines?” blog, preemption for counties depends on the state and carbon pipeline laws. At the moment there is no federal oversight of the rating and siting of pipelines on private land. However, the safety of pipelines is regulated through the Pipeline Safety Act. Companies involved in the lawsuits are claiming that this federal law supersedes county ordinances, and makes them null and void.
As those cases work their way through the courts, state utility commissions in South Dakota and Iowa are moving forward with the carbon pipeline permit applications and have been encouraging public participation. Earlier this year the South Dakota PUC moved the evidentiary hearing dates for Summit Carbon Solutions’ permit to September at the request of affected landowners who would have had conflicts with the planting season and made it difficult to attend.
In mid-June, the Iowa Utilities Board made a similar move by setting its procedural timeline and is holding its first evidentiary hearing on Aug. 22 in Fort Dodge. They are encouraging public engagement in the hearing by scheduling additional meetings in remote locations closer to affected landowners to receive testimony regarding the eminent domain and easement process. In addition to live streaming the hearings, they are also exploring if there is sufficient interest in alternative forms of testimony via virtual participation and the use of voluntary mediators. These hearings will inform the board of their decision to accept or deny Summit Carbon’s permit application.
On a federal level, the Pipeline and Materials Safety Administration recently held a public meeting and forum on carbon dioxide pipelines in Des Moines. The administration is part of the U.S. Department of Transportation and is in charge of setting safety standards for all interstate pipelines. According to the meeting announcement, presentations of that meeting should be available at this link by July 1.
Part 1 - Lawmakers in Iowa, South Dakota introduce pipeline legislation
Part 2 - Who regulates carbon pipelines?
Part 3 - Land-use processes for carbon pipelines