I'm not in the business of making predictions for the New Year. If we've learned anything during the past three years, unpredictability will be the norm! But I've lived most of my life in rural Iowa and worked in ag media for decades, and the past may be prologue for one issue in 2023: eminent domain.
Since the days when the transcontinental railroad first crossed this county, eminent domain in the name of the public good has been the go-to justification for taking private property. At Successful Farming, readers would plead for help in saving their land from any number of sanitary and hazardous waste landfills. Four-lane highways and airports also triggered traumatic "takings," and it continues until this day.
Eminent domain allows for the taking of private property for a greater, public purpose, after paying owners fair market value. State public utilities have been entrusted with the authority over the siting and construction of natural gas, electric transmission, and hazardous pipelines, and the powers of eminent domain to obtain private property.
What's changing today is a trend for powerful new players, notably for-profit private companies, to petition government to use eminent domain. In Iowa, it set the stage in 2015 for a high-stakes battle pitting private property rights in agriculture against an out-of-state company's plan to build an energy infrastructure across Iowa that bypassed Iowans.
The pivotal issue is when, if ever, should government grant private companies the power of eminent domain? What is the definition of public use ("public convenience and necessity") What is just compensation: fair market or commercial value?
Eminent domain remains an abstract concern for most Iowans. In 2015, it became a gut-wrenching reality for many Iowa farmers, including our neighbors living in the Goliath shadow cast by Dakota Access LLC. Its Texas-based owner, Energy Transfer Partners was proposing a 1,134-mile underground pipeline carrying up to 570,000 barrels of oil daily from the shale fields of North Dakota, through South Dakota, Iowa, and to a hub in Patoka, Illinois, for redistribution to the Gulf Coast. Along its route, the pipeline would snake beneath eight rivers and major watersheds and streams.
The 348-mile Iowa route came within one mile of our farm, and cut through two fields that we were renting. Farmers and landowners raised issues of long-term damage from soil compaction and disruption of water drainage tiles, as well as reduction of property values and the danger of accidental leaks. The Boone County Board of Supervisors unanimously voted to oppose the pipeline. The Iowa Utilities Board (IUB) held an 8-hour hearing that attracted a standing-room-only crowd in Boone. A large protest followed in the scenic valley east of Pilot Mound, where the pipeline was being built beneath the Des Moines River.
Some farmers and landowners allowed their property to be surveyed, and quietly accepted the one-time, lump-sum compensation. Not LaVerne Johnson, a longtime Pilot Mound farmer/landowner. The pipeline crossed within 50 feet of his home. He joined a lawsuit protesting the use of eminent domain that eventually reached the Iowa Supreme Court. He and eight other landowners lost in May 2019 when the Court affirmed that the pipeline was "in the public interest." Sadly, LaVerne, who was a larger-than-life figure in our community, suddenly died about six weeks prior to the ruling. No one in his family doubts that the stress of this lawsuit weighed heavily upon him.
LaVerne Johnson, foreground
Today, not one drop of the fracked North Dakota oil benefits Iowans. An Iowa State University study conducted following the pipeline construction found that corn production fell an average of 15 percent in Dakota Access easements, and soy production fell 25 percent. (Research will continue to evaluate the long-term impact.)
Iowans lost the battle over using eminent domain to dig up rich topsoil to transport dirty domestic energy. It became yet another divisive issue in rural Iowa
.
In 2020, the IUB allowed Dakota Access to ramp up the amount of oil flowing through the state to 1.1 million barrels per day. On December 7, 2022, a reported leak of 600,000 gallons from the Keystone Pipestone north of Washington, Kansas, flowed into Mill Creek. The Kansas oil leak is the biggest in the United States in more than a decade and the largest in the 12-year history of the Keystone Pipeline.
New year, new pipeline battle
In 2023, the battle brewing in Iowa is the use of eminent domain to transport "clean" environmental benefits. Summit Carbon Solutions and two other companies are seeking to build pipelines to remove and store carbon dioxide emissions produced as a byproduct of ethanol refineries.
The issue is murkier than a fossil fuel pipeline since Summit's carbon sequestration pipeline across five Midwestern states is embedded with ethanol interests. Most farmers support ethanol, but they don't necessarily welcome a carbon pipeline buried beneath their farmland. They have raised the question of whether carbon storage is a proven strategy. Coal carbon-capture pipeline projects in states including Texas, Indiana, and Mississippi were brought online and then shut down. Proponents argue that carbon emissions from ethanol would be easier to capture.
What about the safety issues? If a leak occurs, the colorless and odorless gas can be fatal in relatively low doses. In a fluid state, the plumes can spread 1,500 feet in only four minutes. A C02 pipeline leak in Mississippi in 2020 sent 50 people to the hospital, and many more were evacuated.
The issue butts heads squarely with powerful agricultural interests in Iowa, and the individual issue of farmers' property rights, raising the question: Who stands to gain the most? Probably not farmers, landowners, or rural communities. The jobs created, like the ones from Dakota Access, will be temporary, filled by mostly out-of-state workers, along with a few permanent ones.
Lucrative tax credits, however, are at stake for the company that manages to get construction underway by 2026. Bill Hanigan, an attorney with Davis Brown, which represented the Dakota Access landowners in 2016, said the ruling by the Iowa Utility Board to grant a hazardous liquid pipeline permit and the powers of eminent domain "sets a precedent for wealthy developers seizing Iowa farmland for private ventures that bring no measurable benefit to Iowans."
It creates even greater fissures across rural Iowa, since some farmers (and long-distance landowners) may choose to accept compensation, and to defend the pipeline's potential benefits to the ethanol industry. (Watch for me to write more on this wedge issue of clean energy projects and rural Iowa).
Legitimate questions of political influence on the composition of the three-member Iowa Utilities Board, appointed by former Governor Branstad, were raised during the Dakota Access debate. Today Branstad is a senior policy advisor to Summit Carbon. The company's vice-president of governmental affairs previously served as chief of staff to Gov. Kim Reynolds.
A bill proposed in 2022 in the Iowa Senate would have removed the Iowa Utilities Board's authority to grant eminent domain rights to private companies, but it was left to languish. A House bill would have required 90% approval from landowners along the pipeline path.
What's ahead in 2023? Iowa is a pro-business state, but landowner rights have formed a major plank of Republican government. Will this new eminent domain battle sow yet another bumper crop of intimidation, anger, fear, conflicts of interest, and political maneuvers? It's a slippery slope for this year's legislative landscape.
Individual property rights are deeply engraved into the bedrock of this country. The pipeline's path across the Des Moines River bluffs east of Pilot Mound left a visible scar. It's a stark reminder that this bedrock is in danger of being eroded
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This goes beyond pipelines as well. I think when we reflect on the next decade in Iowa, some landmark moments for many communities in Iowa will be what has happened around energy companies and their land practices. The road signs along county roads and highways all look the same. They're generally white with some kind of red indicator. And if they don't say "No Carbon Pipeline" they'll say "No Wind Farm" or "No Commercial Solar". In Tama County where I live, the grassroots effort to oppose wind development is the biggest, most organized political movement to be taken up in our area in decades. The painful irony in it all though is that it feels like Iowa landowners have long since sold our land and water quality down the river in the name of commercial ag interests. And so these energy developments feel somewhat inevitable to me. I wouldn't want a turbine or a pipeline in my backyard of course. But I don't want corn fields tiled to high heaven or the 23 million head of hogs we now have with their stench and waste issues either. But I didn't get a say in any of those things. I think we're beginning to reap the consequences of voting in leaders like Terry Branstad, Chuck Grassley, Tom Harkin and others for historically lengthy tenures. That complacency has helped to hollow us out and leave our resources and institutions vulnerable for exploitation. And the leadership is not changing any time soon. So communities are left to self-organize efforts that no grassroots group is equipped to undertake. In Tama County, the Anti-Turbine movement has tried and failed at multiple law suits. They've recently gotten voters to approve enlarging the county board of supervisors from three members to five. They show up at each weekly supervisor meeting and troll the board members until they're forced to stop commenting. It reeks of bitterness and desperation and I'm sad to see it like it is. It shouldn't and doesn't have to be like this. But yet feels beyond us to a degree as well. I would imagine other counties are experiencing similar things. Maybe the anti-pipeline efforts have garnered more solidarity among their members given the larger footprints. I hope for at least that.
Thank you Cheryl for presenting this article. While the pipeline plans do not come near us, many of my friends are fighting hard to keep this questionable solution to carbon capture at bay.