Lessons from Dakota Access Pipeline shape farmers' battle over proposed carbon pipelines
Farmers in the Midwest are gearing up for a fight over whether pipelines can cut through their land. Many look to the experience other farmers had with the Dakota Access Pipeline a few years ago.
Keith Puntenney is still feeling the impacts from the construction of the Dakota Access Pipeline through a corner of his central Iowa farmland.
Three acres of the land isn’t worth planting, Puntenney said, five years after part of the 1,200-mile pipeline was put under his land to carry crude oil from North Dakota to Illinois. He says the soil is compacted and doesn’t get the same yields.
“They promised that they would remediate the soil,” he said. “They never did.”
Now another pipeline, this one carrying carbon dioxide, could be adjacent to another section of Puntenney’s farm.
“Déjà vu,” he said. “This is just … the same thing, different day.”
Iowa company Summit Carbon Solutions is proposing the pipeline that would run near Puntenney’s land. It would capture carbon dioxide emissions from ethanol plants in Iowa, Nebraska, South Dakota, Minnesota and North Dakota and pipe them underground to be stored in underground rock formations in North Dakota.
Two other companies are also proposing pipelines elsewhere in Iowa that would travel into several Midwestern states. While the projects are aimed at making the ethanol industry greener and more sustainable, farmers' issues with the Dakota Access Pipeline are setting the stage for another fight over land.
“The issues that I experienced and still experience five years later are not ending,” Puntenney said. “They’re just going to happen to somebody else.”
A spokesperson for Energy Transfer, which owns the Dakota Access Pipeline, wrote in an email that the company is mostly done remediating Iowa land impacted by the project and working with a few farmers to fix things. The spokesperson said the company also paid farmers in advance for three to five years worth of crop loss.
Fighting for their land
Keith Puntenney's history with the Dakota Access Pipeline started long before construction and shows how difficult it could be for farmers to keep pipelines from their property.
After the crude oil pipeline was announced in 2014, he worried what would happen if oil from the pipeline spilled and opposed its construction. But the Iowa Utilities Board signed off on the project, allowing the pipeline company to seize peoples’ private land through eminent domain.
Puntenney, a retired tax attorney, fought the board and the pipeline all the way to the Iowa Supreme Court, where the high court sided with the utilities board. It was a bitter disappointment.
“We expected them actually to rule in our favor,” he said, “because there had never been an Iowa Supreme Court case on an interstate pipeline, benefit out of Iowa given eminent domain. That was the first time that it happened.”
Eminent domain, the power of the government to seize peoples’ private property for a public purpose, has been used for projects such as water infrastructure, highway and pipelines, said University of Iowa law professor Shannon Roesler.
“One of the first things you learn in law school in your first year property class is that property rights are a lot less absolute than you probably assumed,” Roesler said.
Kelo v. City of New London, a 2005 Supreme Court Case, held that governments could condemn private property for public use, even if the public use was just economic development. Some states followed the court’s interpretation, but others, like Iowa, did not.
For eminent domain to be applied in Iowa, Roesler said there has to be a public purpose beyond economic development.
“The question for the carbon pipelines,” Roesler said, “is what is the extra benefit to Iowans from shipping carbon from ethanol and fertilizer plants out of state? Extra meaning more than just revenue from taxes and jobs.”
The carbon dioxide pipeline companies say the projects will extend the viability of the ethanol industry, an important part of Iowa’s economy. They also promise environmental benefits, said Elizabeth Burns-Thompson, a spokesperson for Texas-based Navigator CO2 Ventures, one of the pipeline companies.
“These are truly taking CO2 that otherwise would have been emitted in some of our small communities across our states,” Burns-Thompson said. “This isn't just offsetting an emission, on one coast to the other, this is truly preventing an emission that would have happened in some of our backyards.”
‘It’s a living nightmare’
Richard and Phyllis McKean live seven miles outside of Armstrong in northern Iowa and have more than 900 acres of farmland. Some of the land has been in the McKean family for more than a century.
Navigator CO2 Ventures’ proposed pipeline would cut diagonally across their land, which the couple can see from their living room window. “We don’t want it,” they both declared numerous times while sitting for an interview.
“It’s a nightmare,” Richard McKean said. “It’s a living nightmare. Because it'll be right smack in front of our house. It's hazardous material.”
Both Richard and Phyllis want the Iowa legislature to “equalize” the law around eminent domain so landowners have more power. A proposed bill would delay eminent domain for carbon pipelines for one year, but so far it has only passed in the Iowa House of Representatives.
“It makes a person angry,” Phyllis McKean said. “That this is private property. And they think they can come in and do what they want to.”
The McKeans are familiar with how other farmers struggled with the Dakota Access Pipeline and the heavy disturbance to the soil. Richard McKean, now retired, used to run a drainage installation business.
“I’ve spent a lifetime on the farm working with drainage,” he said. “I have moved soil, I’ve trenched, I've plowed tile. Once you disturb that soil … you never get it quite back the same way it was.”
The land the McKeans own is pattern tile, which means they have tubing parallel to one another buried underground to help drain excess water from their fields. They worry the pipeline companies would cut the tile lines for construction, disrupting more acres than just those in the pipeline’s path.
“A drainage system is like a highway,” Richard McKean said. “When you disrupt a portion of it, you basically have damaged the use of the rest of the drainage system.”
Pipeline companies ‘on the hook’ to restore farmland
Navigator CO2 Ventures would be obligated to make the proper repairs if there was any harm done, for instance, to the McKeans' drainage system, said Navigator’s Elizabeth Burns-Thompson.
“In year three, four or five, if it’s just not repaired correctly and they had any kind of flooding or any damage to the property and any impact to their crops, we’re on the hook for that,” she said. “We have to keep them whole for that.”
Navigator hasn’t filed a permit application in Iowa yet. Neither has Archer Daniels Midland and Wolf Carbon Solutions for their proposed project in Iowa and Illinois. But Iowa company Summit Carbon Solutions has applied for a permit with the Iowa Utilities Board.
The permit application’s agricultural impact mitigation plan says Summit will pay landowners for 100% of the crop lost to production in the first year after construction, 80% of the loss in the second year and 60% of the crop lost in the third year.
Jimmy Powell, the chief operating officer for Summit Carbon Solutions, said the company expects there to be a short-term impact to farmland because of the construction.
“But we think with following the [Iowa Utilities Board] requirements for reclamation, our ag impact mitigation plan, that we’ll reclaim the property back to as found or better condition,” Powell said, adding that the “improvements the board put in place will mitigate the risk to the landowner.”
In the construction of the Dakota Access Pipeline, an Iowa State University study found construction tore up the land before compacting it so much that it couldn’t support crops as it had before. Activists and landowners claimed crews worked to install the pipeline while the soils were wet, which compacted soil.
"We try to make sure that any lessons that we can glean from Dakota Access or any other project, we incorporate as best practice into this."Jimmy Powell, Chief Operating Officer for Summit Carbon Solutions
Last year, the Iowa Utilities Board adopted new requirements for how companies must restore farmland after pipeline construction. Among those rules, pipeline companies can’t remove topsoil in wet conditions. A spokesperson for the board said companies working on pipelines are required to follow these rules “unless the landowner agrees to different requirements.”
Summit Carbon Solutions, Powell said, is trying to “incorporate lessons learned” from the Dakota Access Pipeline. The carbon dioxide pipeline will be smaller than the Dakota Access Pipeline, he said, and won’t require much large equipment to build it.
“The compaction and disruption will not be on the same scale as Dakota Access,” Powell said. “Still, we try to make sure that any lessons that we can glean from Dakota Access or any other project, we incorporate as best practice into this.”