Summit Carbon Seeks to Build Carbon Sequestration Pipeline Across Iowa

September 7, 2021 | Kristine A. Tidgren

On August 4, 2021, Summit Carbon Solutions, LLC, initiated the legal process to build a proposed 710-mile carbon sequestration pipeline through 30 Iowa counties by filing a request for public informational meetings with the Iowa Utilities Board. In its inaugural filing, Summit Carbon stated that the proposed hazardous liquid pipeline would “capture carbon dioxide emissions from ethanol plants that otherwise would be emitted into the atmosphere and transport those emissions through a pipeline to North Dakota where they will be permanently and safely stored in deep underground geologic storage locations.”

Summit Carbon asserts that the proposed $5.2 billion project, called the “Midwest Carbon Express,” would have the capacity to capture and permanently store 12 million metric tons of carbon dioxide every year. The proposed pipeline would also cross through four other states—North Dakota, Nebraska, Minnesota, and South Dakota—and would capture and transport the emissions from more than 30 ethanol plants for long-term underground sequestration. Summit Carbon projects a 2024 completion date.

Legal Process

To build the Iowa portion of the pipeline, Summit Carbon must obtain a permit from the Iowa Utilities Board. Iowa Code § 479B. Although the Board has no jurisdiction to regulate the safety of pipelines, the Board has sole discretion to determine whether to allow a private company to build a hazardous liquid pipeline across the state. The decision of the Board will ultimately turn on whether the Board believes the pipeline will “promote the public convenience and necessity.” Iowa Code § 479B.9. Iowa law provides that a company granted a pipeline permit “shall be vested with the right of eminent domain, to the extent necessary and as prescribed and approved by the Board, not exceeding seventy-five feet in width.” Iowa Code § 479B.16.

Informational Meetings

The permit approval process, however, is down the road. The first step for a company wishing to build a hazardous liquid pipeline is to hold public informational meetings for those who will be potentially affected. As noted above, Summit Carbon filed its request to hold these meetings on August 4, 2021. It also filed a map showing the proposed route of the pipeline. On August 11, Summit Carbon revised its proposed letter to landowners to include the following details:

Your receipt of this letter indicates that right of way on or near property in which you have a legal interest could potentially be affected by the construction of the project. Summit Carbon Solutions will be seeking permanent easements for its pipeline on or near your property, as well as easements for temporary construction workspace, as well as access easements.  Enclosed is a map showing the proposed route and the notification corridor in which potentially affected properties are located. The final alignment of the pipeline within the identified corridor will be selected after negotiations with landowners are complete. Please join the informational meeting for additional details regarding the purpose, timing and routing of the proposed project. You have the right to be present at this informational meeting and to file objections with the Iowa Utilities Board if you so choose. Under Iowa law, Summit Carbon Solutions cannot negotiate with landowners …before the public informational meeting.

On August 12, 2021, the Board approved the dates, times, and locations of the proposed meetings. The approval letter stated, “Summit Carbon shall conduct the informational meetings in compliance with the requirements of 199 IAC 13.3 and provide sufficient audiovisual equipment for the expected audience, should all affected landowners who are notified attend.  Summit Carbon shall file in this docket a draft of its informational meeting presentation by September 1, 2021.” Summit Carbon filed its presentation materials on September 1. The final schedules and locations for the informational meetings are here.

Negotiation Process

Once the informational meeting is held for a particular county, Summit Carbon may approach landowners to begin negotiating the purchase of easements. Few details have been disclosed regarding the size of the easements that will be sought. The presentation materials state that the pipeline would be buried at a minimum of four feet deep (from the top of the pipe).

Access Land for Surveys

Once the meetings are complete, Summit Carbon may also access potentially impacted properties to conduct a survey after giving landowners 10 days’ written notice. The entry for land surveys shall not be deemed a trespass and may be aided by injunction. Iowa Code §479B.15.

Permit Approval

Summit Carbon may file its formal petition seeking a hazardous pipeline permit anytime between 30 days and two years after holding its last informational meeting, currently slated for October 15. If and when Summit Carbon files its petition, the Board will schedule a hearing in the county seat of the county at the “midpoint” of the proposed line. Interested persons may file written objections. At the hearing, interested parties would be allowed to present evidence to support or oppose the pipeline’s construction. Ultimately, the Board would have to decide whether the proposed line would “promote the public convenience and necessity.”

As noted above,  pipeline companies granted a pipeline permit “shall be vested with the right of eminent domain, to the extent necessary and as prescribed and approved by the Board." This means that Summit Carbon would be given the right to acquire easements through eminent domain in exchange for “just compensation” if it is unable to acquire all necessary parcels pursuant to voluntary agreements. The law also requires the Board to establish standards for the “restoration of agricultural lands during and after” the construction of the pipeline.

If the Board were to grant Summit Carbon the power of eminent domain, county compensation commissions would determine the “just compensation” to which the individual landowners would be entitled. Landowners and Summit Carbon would have the right to appeal these initial determinations through the Iowa court system.

What’s Ahead?

Impacted landowners should attend informational meetings and seek to have their questions answered. Those offered easement agreements should secure legal counsel to review the terms and to understand the full scope of the property rights being relinquished. Compensation and damages will be strictly limited to the terms of any voluntary agreement. Once seven days has passed from the time of any signed agreement, a pipeline easement is a permanent property right that cannot be revoked. It runs with the land and impacts all future owners.

We will continue to monitor developments on this proposed pipeline as they unfold.