Pipelines and Eminent Domain: Iowa Homeowners Push Back

Get Off My Lawn!

When the government decides its stake in a piece of property overrides the landowner’s, it has a process to take over private property. This is called eminent domain. It’s essentially the government forcing a private landowner to sell their residence or business property.

Another word for it is condemnation (which sounds even worse!). Condemnation or eminent domain cases are handled in courts, and traditionally were used for things like road-widening.

Today, some homeowners are being forced to fight a new wave of eminent domain. Residents of rural Iowa are at the core of the current conflict. Their advocates say newly proposed takings for carbon pipeline installations are really giveaways to private corporations.

What’s Going On? This Is the Iowa Carbon Pipeline Controversy.

Should companies use the government to seize land without the owners’ consent? This is the question of the year for hundreds of Iowa landowners. They say their property rights, and the health and safety of their surroundings, matter more than the interest of energy companies in expanding a pipeline infrastructure.

The companies intend to move 39 million tons of “captured” carbon dioxide annually from Iowa’s ethanol and chemical factories. The gas is to head for sites in Illinois and North Dakota, to be injected under the ground.

These pipeline projects would capture something else, too. There are federal subsidies available to the factories and pipeline firms that are now coalescing into an emerging energy sector: carbon capture and storage, or CCS.

Companies to Land Owners: Give Us Easements, or We’ll Take Your Land Anyway.

One of the pipeline companies already convinced numerous Iowa landowners to agree to easements. Based on the easement rights, the company plans to dig up the pipeline routes, then place the pipes underground. The company says it’s on track to begin digging in 2023.

Yet plenty of Many landowners won’t go along with the idea. Some are concerned that their property values will sink. Some worry about potential pipeline ruptures. It seems they do have valid concerns about CO2 gas leaks.

Where they can’t get easements, the pipeline companies intend to get eminent domain grants from the state utility board to gain control of their planned routes.

  Property rights transferred through eminent domain are decreed by the court, and recorded as (a) easements or (b) fee simple conveyances. A deed describes an easement on a property. Fee simple is a permanent taking, and will be removed from the property’s legal description on the deed.

At least 20 Iowa counties formally oppose eminent domain for the pipelines, according to the Reuters® news service. Some county supervisors think the companies are seeking eminent domain to strong-arm farmers, and take financial advantage of them. A Republican state senator has introduced a bill to block the companies from obtaining eminent domain rights.

Under U.S. law, corporations can take advantage of eminent domain to receive control of property — as long as they pay the landowners for the taking, and as long as the use of the land serves a public need. This is the method used to allow energy corporations to install pipelines through privately owned land in the past. But eminent domain in the case of carbon transport is a new concept. While the question has obvious interstate aspects, so far, carbon pipelines are primarily regulated by states, not the federal government. The Iowa Utilities Board would be issuing pipeline permits, and granting companies the eminent domain authority.

So, Do Carbon Pipelines Serve the Public?

Under the Fifth Amendment of the U.S. Constitution, eminent domain must be for a public use. State law has a similar provision. The Iowa Utility Board may grant companies eminent domain authority, under Iowa law. The corporate takings must be “necessary” for the public purpose.

The companies applying for Iowa pipeline permits say they’re creating hundreds of jobs. They also say their projects will save Iowa’s ethanol industry by buying the factories’ carbon dioxide.  

Their strongest claim of all is the climate-based argument that companies must take land for pipelines. It’s deemed a strong claim because the federal government itself suggests that CO2 capture and pipelines are necessary to curb carbon emissions and keep the United States on track with Paris Climate Agreement goals.

But Reuters quotes Iowa farmer Don Kass, who chairs the Plymouth County board of supervisors, saying: “This is a profit center for a very select group of people.”

To date, some 5,000 miles of carbon dioxide pipelines run across the United States. In Texas and Wyoming, workers inject the CO2 beneath oil and gas sites, to press more fossil fuels up from the ground. But it would take 70,000 miles of pipes to move enough carbon dioxide to reach net zero emissions by 2050, according to the White House Council on Environmental Quality. That seems like a whole lot of easements and eminent domain. It also seems to contradict the idea that carbon capture is a climate imperative. Because carbon capture promotes fossil fuel extraction, the Sierra Club’s Iowa chapter opposes the technology.

Public-Interest Lawyers Are Pushing Back Against “Abusive” Eminent Domain.  

The Institute for Justice, a public-interest law firm, has created an Eminent Domain Abuse Survival Guide. It’s also helped save thousands of home and small businesses owners from losing their land to condemnation.

Among the firm’s chief arguments against eminent domain are:

  • Abuse of authority. Governments speak of eminent domain as a last resort. But it’s used to make offers people can’t refuse — because if they refuse, they’ll lose their property.  
  • Injustice. Private developers are most often granted eminent domain rights in minority and working-class communities that lack the clout to stand up for their rights. 

Heads up, homeowners. In coming years, new eminent domain issues will be driven by climate change.

The Institute for Justice considers the U.S. Supreme Court responsible for some of the trouble. The Supremes, in a 2005 case called Kelo v. New London, emboldened corporate users of eminent domain, by allowing the activities of private developers to fall under the public-purpose classification. Private profit can now be reframed as a public good.

Since the Kelo ruling, most states across the nation have bolstered their residents’ rights to fight eminent domain takings. In 2006, Iowa adopted a law to undercut the deference usually afforded to government entities in eminent domain cases, and to mandate individual, property-specific examinations of public need. And in 2019, Iowa’s Supreme Court formally disavowed the Kelo holding.

Nevertheless, the Iowa judiciary has upheld oil and gas pipeline takings. Now, the emerging carbon capture sector is imposing yet another challenge for landowners.

Supporting References

Leah Douglas for Reuters.com®: Summit Says Carbon Pipeline Project Has Secured 20% of Iowa Route  (Apr. 19, 2022).

Leah Douglas for Reuters.com®: U.S. Carbon Pipeline Proposals Trigger Backlash Over Potential Land Seizures (Feb. 7, 2022).

Agents National Title Insurance: Condemnation (Eminent Domain) Overview (includes a policy statement of the American Land Title Association).

Iowa Utilities Board: Frequently Asked Questions About Eminent Domain (PDF).

Institute for Justice: Eminent Domain

Institute for Justice: Iowa Eminent Domain Laws.

And as linked.

Photo credits: File: VAHeritage (cropped); CC by 3.0 Unported license; also AdamLowly, via Pexels.