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CO2 Pipelines: County Ordinance & State Legislation Tracker

Mark Hefflinger, Bold Alliance (Photo: Bryon Houlgrave/Des Moines Register

By Mark Hefflinger

News January 27, 2023

York County, Nebraska Board meeting attended by landowners and community members opposed to the Keystone XL pipeline, 2014 (Photo: Mark Hefflinger)

A year ago, landowners, Tribal Nations, and grassroots groups started to get phone calls about a new threat – carbon dioxide pipelines. On the surface, it might sound good — less carbon emissions in the air — however, we quickly learned that carbon pipelines are a climate scam that pose a serious danger when they rupture. Communities are pushing back with legal and grassroots actions.

In an ideal world, states and the federal government would ban the abuse of eminent domain for private gain, and establish clear laws around easement terms, pipeline decommissioning, setbacks and emergency response. The reality is, none of this exists for the new threat of carbon pipelines, so much of the responsibility lies on the shoulders of county governments.

Counties are empowered to take action to protect their communities from the dangers of proposed carbon dioxide pipelines, despite threats of legal action from pipeline corporations.

Read Bold Alliance attorney Paul Blackburn’s explainer for county officials:Does Federal Law Prohibit Counties from Imposing Setbacks on CO2 Pipelines?

Counties across the Midwest states impacted by proposed CO2 pipelines — Iowa, South Dakota, North Dakota, Nebraska, Illinois, and Minnesota — have already taken action to file objections with state agencies overseeing permitting processes, and also put in place commonsense ordinances and moratoria on carbon pipelines.

Bold Alliance has produced a Model County Ordinance for Carbon Pipelines that county officials may review and consider as a basis for crafting their own ordinances. (Note: The Model County Ordinance language was produced based on Nebraska‘s unique laws. If you’re a landowner or organizer interested in obtaining draft county ordinance language for your state, please contact us.)

State lawmakers in the impacted states are also introducing legislation during their 2023 sessions aimed at regulating carbon dioxide pipelines, including preventing the abuse of eminent domain for these projects that serve no public good. Bold’s Pipeline Fighters Hub and the Easement Action Teams are serving as a convener and assisting state-based groups and landowners with education, legal structures, and tools.

We have endeavored to create a tracker here, to monitor ongoing efforts by states and counties at the behest of landowners and community members.

ILLINOIS

COUNTIES

STATE AGENCY: ILLINOIS COMMERCE COMMISSION (ICC)

Navigator Heartland Greenway filed a permit application with the Illinois Commerce Commission in July 2022 to build a carbon pipeline through 13 counties. On Jan, 20, 2023, Navigator filed a motion to withdraw its permit application at the ICC, claiming it intends to re-file in February 2023.

Notably, ICC staff recommended the agency deny Navigator’s motion, citing the statutory 11-month deadline after an application is filed, and further that “Administrative efficiency supports the denial of HR243’s Motion to adjust the start of the statutory clock. Litigation over a motion for extension of a statutorily-mandated deadline – which, as seen above, cannot be granted in any case – unnecessarily complicates the proceedings and is an inefficient use of already constrained Commission time and resources, whereas adherence to the current schedule is more efficient and feasible as contemplated by the intent of the statute. Therefore, Staff supports following the existing procedural schedule as ordered by the ALJ.”

A growing number of Illinois counties have applied for intervenor status in the ICC proceedings, while counties including Morgan have filed objections over eminent domain with the ICC:

ILLINOIS STATE LEGISLATURE

Advocates in Illinois are pushing to introduce several carbon pipeline-related bills in the 2023 session, which are expected to be introduced in the coming weeks.

LAWSUITS

No lawsuits filed to date.

IOWA

COUNTIES

  • Shelby County Ordinance (November 2022): “The new ordinance requires any company that wants to build a pipeline through Shelby County to go through a new permitting process, and places strict limits over how close the pipeline can be to homes, farms, towns and schools.”
    • Pipeline co. lawsuit: Summit Carbon Solutions filed a federal lawsuit challenging the Shelby County ordinance in November 2022.
  • Story County Ordinance (October 2022): “The Story County Board of Supervisors passed an ordinance that establishes setback and other requirements for hazardous materials pipelines in the county.”
    • Pipeline co. lawsuit: Summit Carbon Solutions filed a federal lawsuit challenging the Story County ordinance in November 2022.
  • Linn County Ordinance (December 2022): “The ordinance proposes two setback standards: one for areas of public assembly and one for dwellings. The setback for public areas such as schools, hospitals and parks mandates the pipeline be a distance of 155.8 feet times the pipeline’s diameter. That would equal about 2,500 feet — a little less than half a mile — for the 16-inch pipeline.The setback for dwellings would be 107.65 feet times the diameter of the pipeline, plus another 328 feet, equal to about 2,050 feet for a 16-inch pipeline.”
    • Dec. 14, 2022: “The Linn County Board of Supervisors is pausing action on a pipeline regulation effort after a pipeline developer and anti-pipeline activists alike came out against it.”
  • Adair County Ordinance (December 2022): “The Adair County Board of Supervisors held a public hearing and then approved an ordinance today that would regulate hazardous liquid pipelines, targeting a proposed carbon dioxide pipeline.”
  • Emmett County Ordinance (draft status)
  • Page County Ordinance (draft status)
  • Palo Alto County Ordinance (draft status)
  • Bremer County Ordinance (draft status): “An ordinance amending various sections of the Bremer County Zoning Ordinance 2207 for the purpose of regulating and restricting the use of land for the transport of hazardous liquid through a hazardous liquid pipeline” 
  • Crawford County Ordinance (draft status): “The ordinance would require a company that has filed a petition with the Iowa Utilities Board (IUB) for a permit to construct a hazardous liquid pipeline in Crawford County to submit an application to the county zoning administrator for a conditional use permit within seven days of the IUB filing; the company would be required to provide a range of documentation. The proposed ordinance sets minimum separation distances for a hazardous liquid pipeline from a variety of locations: from the city limits of an incorporated city, not less than two miles…”
  • Hancock County Ordinance (draft status): “A county ordinance for the purpose of regulating and restricting the use of land for the transport of hazardous liquid via pipeline… the board’s biggest concerns for Hancock County are disruption of drainage districts, EMS and hazardous response planning for potential incidents associated with any such future pipeline, county road crossings, and unforeseen long-term implications associated with a hazardous liquid pipeline.”

STATE AGENCY: IOWA UTILITIES BOARD (IUB)

  • Objections filed: 44 Iowa counties and 21 cities have filed objections with the Iowa Utilities Board, most opposing the use of eminent domain for carbon pipeline projects, with some entities making further objections. Other entities that have filed objections range from Bremer County Board of Health to Charles City Area Development Corporation to Cedar County Emergency Management to Linn County Soil and Water Conservation District.
  • Intervenor status during permit reviews: Six Iowa counties have so far filed applications to the IUB to become “intervenor” parties during the agency’s hearings to review the carbon pipeline companies’ permit applications, which have yet to be scheduled by the IUB. Landowners attorneys with the Iowa Easement Team and parties including the Farm Bureau have argued before the IUB that deference should be paid to farming and ranching work schedules to enable landowners to fully participate. IUB staff has responded to the Summit’s request to approve fast-tracked schedules they propose by noting the huge number of landowners’ parcels that have not been acquired by voluntary easements — more than 1,500 to date on Summit’s route alone — which under Iowa law IUB staff members must visit individually to comply with eminent domain proceedings. Counties that have filed as intervenors in upcoming IUB permit application reviews:

IOWA STATE LEGISLATURE

Top Republican leaders in the House and Senate have said they intend to introduce and back legislation during the 2023 session that will ban or impose a moratorium on the use of eminent domain for carbon pipelines, or perhaps impose a “threshold” on the percentage of voluntary easements that must be acquired before a company could apply to use eminent domain. Other concerns that are expected to be addressed in forthcoming proposed legislation include addressing landowner harassment by pipeline companies, better payment options for landowners who go through the eminent domain process, and changes to laws that address the surveying of property.

  • Senator Jeff Taylor (R) has introduced five bills, which have been designated to the Senate Commerce Committee and have been assigned to a subcommittee.
    • SF 101: removes power of eminent domain from Iowa Utilities Board for hazardous liquid pipelines
    • SF 104: requires 90% voluntary easement threshold for eminent domain in regard to proposed pipelines
    • SF 102: removes legal permission from pipeline companies to survey private land without permission
    • SF 103: provides harassment protection for landowners during easement negotiations initiated by land agents working for pipeline companies
    • SF 100: requires public disclosure of pipeline investors’ names, addresses, and dollar ranges if company is seeking eminent domain
  • -Additional similar bills expected-
  • Rep Brian Lohse (R):
    • House File 25: An Act authorizing the reduction of damages payable to an unresponsive property owner in condemnation proceedings and including applicability provisions.
  • House Speaker Pat Grassley (grandson of U.S. Senator Chuck Grassley R-IA)
    • Filed a letter of objection to the Iowa Utilities Board (October 2022) over a request from Navigator CO2 Ventures to the IUB to reduce its obligations to sample and restore topsoil for the construction of its proposed carbon dioxide pipeline. “This company’s request for a waiver to these rules, to my knowledge, is not common, and it clearly displays their concern with protecting their bottom line over their duty to fairly work with landowners.”

LAWSUITS

  • Surveying:
    • Iowa landowners William & Vicki Hulse were sued by Navigator in September 2002, seeking an injunction to survey their land after they refused surveyors. Judge Roger Sailer denied the injunction 9/30/22.
      • The Hulses counter-sued, seeking to stop Navigator from entering their land and attorney Brian Jorde with Domina Law and the Iowa Easement Team also are challenging the constitutionality of a state law that allows the developers to survey land before they’ve gotten regulators’ approval to build the pipeline — or have been granted eminent domain powers to force unwilling landowners to sell easements allowing access for the project.”
    • New lawsuits in Clay and Sioux counties were filed in December 2022, bringing the total number to at least nine filed by either Summit Carbon Solutions or Navigator Heartland Greenway.
  • Trespassing: Summit Carbon Solutions contractor Stephen Larsen was arrested for trespassing in Dickinson County, IA after a complaint from landowners in August 2022.
    • December 2022: A judge declined to dismiss a trespassing charge against Larsen, and instead, the judge ordered further briefing on the issue

MINNESOTA

COUNTIES

County-level organizing work has begun in impacted areas.

STATE AGENCY: MINNESOTA PUBLIC UTILITIES COMMISSION (MN PUC)

In May 2022, the Minnesota Public Utilities Commission (MN PUC) issued a ruling determining that it held authority to regulate carbon dioxide pipelines, and initiated a rulemaking to make its rules consistent with state and federal regulations. The MN PUC issued a determination in January 2023 that carbon pipelines must undergo a full Environmental Impact Statement (EIS) review process overseen by the agency, which includes a public comment phase. No schedule for public hearings has yet been determined.

  • “But the environmental impact statement will only be for a short portion of the pipeline project, about 10 miles in northwest Minnesota, and will exclude the portion planned for west-central and southern Minnesota… The Minnesota environmental group CURE — Clean Up the River Environment — had petitioned the PUC that all of the planned Summit pipeline in Minnesota be included in the same environmental review.”

MINNESOTA STATE LEGISLATURE

Minnesota is moving rapidly to pass a revised Renewable and Clean Energy Standard (MN Senate File 4 and House File 7). The Clean Energy Standard and an expected Minnesota Clean Fuel Standard proposal are expected to contain language pertaining to Carbon Capture Utilization and Storage (CCUS).

LAWSUITS

No lawsuits filed to date.

NEBRASKA

COUNTIES

  • Holt County has begun to amend zoning ordinances they had in place for the Keystone XL pipeline to apply to carbon pipelines. (November 2022)
  • Antelope County: “Considering changes to zoning after neighboring Holt County worked to enact new pipeline zoning. “Commissioner Dean Smith said his motion would give “Summit Carbon Solutions consistent regulations.” During discussion, Smith showed photos illustrating destruction from the Keystone I pipeline spill, south of Steele City, Nebraska. He said the leak would “fill 80 tankers.” Smith said safety of residents and resources necessitated his request. “There needs to be something in place to ensure everyone gets reimbursed in case of damages and for expenditures,” he said. Chairman Charlie Henery said working with Marvin Planning Associates would allow the county “to piggyback on what Holt County is doing.
  • Bold Alliance produced a Model County Ordinance for Carbon Pipelines that Nebraska county officials may review and consider as a basis for crafting their own ordinances.
  • Bold Nebraska has so far presented to over a half-dozen county boards and their commissioners a sample ordinance, encouraging them to put in place key zoning and decommissioning standards.

STATE AGENCY: **NONE**

Nebraska’s current laws provide for no regulatory oversight of carbon dioxide pipelines, and no state agency is tasked with any permitting or review process. For oil and gas pipelines (such as the proposed but rejected Keystone XL pipeline), the Nebraska Public Service Commission would hold an evidentiary hearing and grant or deny a permit that would bestow eminent domain authority. In the absence of any governing statute for CO2 pipelines, the power of eminent domain for carbon pipeline companies is not determined in Nebraska, and no state agency is providing due process for landowners nor any oversight on the routing of the pipelines.

NEBRASKA STATE LEGISLATURE

The Nebraska Unicameral last session considered two bills to study eminent domain and put in place decommissioning regulations for pipelines, and passed a bill that relates to potential carbon dioxide sequestration sites in Nebraska:

No legislation has been introduced on carbon pipelines during the 2023 session – either on behalf of carbon pipeline corporations, or on behalf of landowners — leaving a massive gap in protections and legal certainty.

  • LB 650: Legal framework for carbon dioxide sequestration (passed during 2022 session)
    • “The Nebraska Oil and Gas Conservation Commission will regulate facilities that inject carbon dioxide through wells into underground geologic formations for permanent or short-term storage. LB650 allows geologic storage only if a storage operator obtains a permit from both the commission and the Environmental Protection Agency’s Underground Injection Control program. Before the commission issues a permit, it must hold a public hearing and consult with the state Department of Environment and Energy and the federal permitting authority. The commission must find that the proposed storage facility would not endanger surface waters or underground drinking water sources and that the storage operator will establish a testing and monitoring plan to assess the location and migration of injected carbon dioxide.”

LAWSUITS

No lawsuits have been filed to date. We note that we are now currently in exactly the same situation Nebraska was in during the fight to stop the Keystone XL pipelines — before landowners and Bold filed lawsuits to get proper laws and a process in place for routing oil and gas pipelines — and we are prepared to do the same for risky carbon pipelines.

NORTH DAKOTA

COUNTIES

  • Emmons County Ordinance (December 2022): Set 3 percent of total project fee for a Conditional Use Permit application and voted to require 100 percent voluntary easements before issuing a CUP, and voted to establish a half mile setback for hazardous liquids pipelines from inhabited residences.
    • Emmons County zoning also preparing new regulations re: carbon pipelines.
  • Burleigh County Ordinance (January 2023): An Ordinance Amending Article 8 Section 27 of the Burleigh County Zoning Ordinance for the regulation of land use when transporting hazardous liquid through a hazardous liquid pipeline.

STATE AGENCY: NORTH DAKOTA PUBLIC SERVICE COMMISSION (ND PSC)

The North Dakota Public Service Commission (ND PSC) will hold an evidentiary hearing and permit review process for proposed carbon dioxide pipelines, not yet scheduled but currently expected in late summer or fall 2023.

  • While there is no public comment process in North Dakota, so far six counties have gone on record as opposed to the use of eminent domain for the Summit carbon pipeline:
  • October 2022: ND PSC chair Julie Fedorchak recuses herself from Summit pipeline decisions: “North Dakota Public Service Commission chair Julie Fedorchak said she and her husband own land in Oliver County, and a year ago they signed a contract with Summit to store CO2 on their land. She told her two fellow regulators that she wants to avoid any perceived conflict of interest in the case.”

NORTH DAKOTA STATE LEGISLATURE

  • Senator Jeff Magrum filed 8 bills related carbon pipelines:
    • SB 2212: Removes carbon capture pipelines from being granted the right of eminent domain even if granted common carrier status. (Introduced by Senator Magrum & Representative Prichard)
    • SB 2209: Sets eminent domain threshold to 85 percent of landowners as it relates to C02 pipelines, with the option for County Commissioners to set the threshold even higher. (Introduced by Senators Magrum, Weston, Representatives Hoverson, S. Olson, Prichard)
    • SB 2228: Requires 100% consent for underground carbon dioxide storage from the owners of the pore space, eliminating eminent domain. (Introduced by Sen. Magrum)
    • SB 2317: Requires 85% of landowners to consent to underground storage space. Counties could set a higher standard (Introduced by Sen. Magrum)
    • SB 2251: Survey crews must obtain written permission from property owners. (There are currently multiple lawsuits involving Summit and surveyor access.) Introduced by Senators Magrum, Boehm, Larsen; Representative D. Ruby
    • SB 2310: If a person prevails against the state in a court hearing, (as in a surveyor access case) they are entitled to be reimbursed for court costs. (Introduced by Senators Magrum, Paulson; Representatives S. Olson, VanWinkle)
    • SB 2313: If property is taken by eminent domain, a court must increase the award by 33%. (Introduced by
      Senators Magrum, Larson; Representative Christensen)
    • SB 2314: Requires a public hearing in each county where the pipeline company is seeking common carrier status. (Introduced by Senators Magrum, Dwyer; Representatives Heilman, S. Olson, Prichard)

LAWSUITS

  • Surveying: Summit Carbon Solutions sued North Dakota landowners for refusing survey access to their land; they are North Dakota Easement Team members being represented by Brian Jorde and Domina Law Group (September 2022).

SOUTH DAKOTA

COUNTIES

  • Brown County Ordinance (July 2022): Moratorium of one-year on permits for hazardous waste pipelines.
    • Pipeline co. lawsuit: “According to the lawsuits filed by Summit Carbon Solutions, both actions violate federal regulations, specifically the Pipeline Safety Act, which calls for the U.S. Department of Transportation to establish safety standards for pipeline transportation and pipeline facilities. Because federal law regulates pipelines and safety standards, the local actions conflict with federal regulations and become an obstacle, according to the Brown County lawsuit filed in December 2022.
  • Edmunds County Ordinance (April 2022): Edmunds County commissioners passed a resolution on April 12 stating the board’s opposition to the Summit pipeline. Right after that, the county also increased three fees related to hazardous utilities in the county highway right of way. Those include: The hazardous utility (occupancy) fee, which increased from $250 to $5,000. The hazardous utility “plus additional per each crossing” fee, which increased from $1,500 to $50,000. The hazardous utility “plus additional per each longitudinal parallel mile” fee, which increased from $1,800 to $100,000. Revenue from the fees in Edmunds County would be divided with 80% set aside for the Local Emergency Planning Committee and 20% for the county’s road and bridge fund.
    • Pipeline co. lawsuit: Edmunds county was sued by Summit Carbon Solutions in October 2022 for allegedly breaking state law because it increased fees for the projects. “Edmunds County’s actions also violate state law, according to the lawsuit filed against the commission. Per state code, fees should be set to cover the cost and expense of supervision or regulation. The lawsuit claims the fees set by Edmunds County go beyond the limits of a fee and more resemble a tax. Taxes, however, must be levied or approved in specific amounts by the local board. And, according to the lawsuit, the fee is a violation of state law because South Dakota already has established a tax on carbon dioxide pipelines.”
  • Spink County Ordinance (July 2022): Moratorium on new conditional use permits or building permits for hazardous waste pipelines for one year, with one-year extension available.
    • Pipeline co. lawsuit: Summit Carbon Solutions sued in December 2022, arguing the action violates federal regulations, specifically the Pipeline Safety Act, which calls for the U.S. Department of Transportation to establish safety standards for pipeline transportation and pipeline facilities. Because federal law regulates pipelines and safety standards, the local actions conflict with federal regulations and become an obstacle, according to the lawsuit.
  • McPherson County Ordinance (January 2022): Moratorium on new pipelines built in the county until revised zoning regulations on pipelines can be enacted.
    • Pipeline co. lawsuit: Filed by Summit Carbon Solutions October 2022, alleges the county’s moratorium violates federal law.
  • Moody County Ordinance (March 2022): Moratorium of one-year on new pipelines built in the county until zoning regulations can be updated.
  • Hyde County Ordinance (March 2022): Moratorium until September 2022 to allow zoning board to update pipeline regulations.

STATE AGENCY: SOUTH DAKOTA PUBLIC UTILITIES COMMISSION (SD PUC)

The SD PUC voted to hold evidentiary hearings on Summit Carbon Solutions’ pipeline permit application in September 2023. Summit had previously requested a permit decision date of June 2023.

The SD PUC voted to hold evidentiary hearings on Summit Carbon Solutions’ pipeline permit application in September 2023. Summit had previously requested a permit decision date of June 2023.

  • A record of more than 558 intervenor applications have been approved by the SD PUC to participate in the September evidentiary hearings, with the vast majority to be stating their opposition to the project.

SD STATE LEGISLATURE

  • Rep. John Sjaarda, a farmer and new legislator from Valley Springs
    • House Bill 1136 – an act to prohibit the condemnation of private land for certain non-public purposes.
    • House Bill 1178 – an act to establish a timeline and conditions for consideration of an application to construct a carbon dioxide transmission facility.
      • Effectively a moratorium to stop these companies from moving forward until the U.S. Dept. of Transportation’s Pipeline and Hazardous Materials and Safety Administration (PHMSA) finishes their current rulemaking process for CO2 pipelines. Since these rules cannot be retroactively enforced, it is imperative that we not allow these companies to build before there are meaningful regulations in place.
  • Rep. Karla Lems, a freshman legislator representing counties in the shadow of the Summit and Navigator pipelines, has sponsored a bill
    • House Bill 1084: “Would define the requirements for use of eminent domain as “for the public use,” contrasting water systems or natural gas pipelines with projects like carbon pipelines she says do not help South Dakotans as directly.”
    • House Bill 1133 – an act to provide that a company transporting carbon dioxide by pipeline is not a common carrier.
  • Rep. James Wangsness of Miller, another newly-elected legislator representing several pipeline counties, has introduced a bill
    • House Bill 1089: “Would change certain requirements on the controversial topic of land surveying. Though some landowners may have wanted pre-permit surveys by pipeline companies eliminated completely, this legislation instead requires a $500 compensation for entry and the requirement of thirty days’ notice prior to entry, including the name and contact of the person who will enter the property.”

LAWSUITS

  • Trespassing: August 2022: “Landowners in McPherson County filed a complaint against Summit Carbon Solutions in June, and now, landowners in seven additional counties have followed suit. The complaints from landowners state that they believe Summit Carbon Solutions’ surveyors for the carbon dioxide pipeline project coming onto their land without consent or compensation is unconstitutional… The landowners are from Minnehaha, Lincoln, Lake, Edmunds, Spink, Brown and Beadle County, as well as McPherson.” The landowners are part of the South Dakota Easement Action Team represented by Brian Jorde of Domina Law Group.
  • Surveying: September 2022: Summit Carbon Solutions sued landowners who refused the company’s pipeline surveyors onto their property.
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