Federal agency weighs in on counties' power to require carbon capture pipeline setbacks
A sign reading "No CO2, no eminent domain" stands along a rural road east of Bismarck, North Dakota, in opposition to Summit Carbon Solutions' proposed $5.5 billion, 2,000-mile pipeline network to carry carbon dioxide emissions from dozens of ethanol plants in five states, including Iowa, to central North Dakota for permanent storage deep underground. ·The Des Moines Register
Dominik Dausch and Donnelle Eller, Des Moines Register
5 min read
Federal regulators have dipped their toes into controversy swirling in Iowa and neighboring states over how much power local governments have in determining where three proposed carbon capture pipelines can locate.
Some counties are requiring pipeline setbacks for cities, towns, schools, homes and businesses and other requirements ― measures at least two of the three would-be pipeline builders, Navigator CO2 Ventures and Summit Carbon Solutions, have argued are preempted by federal regulations.
Inundated with questions, the U.S. Pipeline and Hazardous Materials Safety Administration sent letters this month to executives at Navigator, Summit and the other pipeline developer, Wolf Carbon Solutions, clarifying the roles of local, state and federal officials in the safety, siting, construction, operation and maintenance of the pipeline projects.
The federal agency said “nothing in federal law impinges” on the “traditional prerogatives” of local or state governments “to regulate land use, including setback distances and property development” so long as “officials do not attempt to regulate the field of pipeline safety preempted by federal law.”
Summit, Navigator and Wolf propose to use their multistate pipelines to capture carbon dioxide emissions from ethanol, fertilizer and other industrial plants, liquefy the gas under pressure and transport it to deep underground sequestration sites in North Dakota or Illinois.
The federal government is offering large incentives for the pipelines, which proponents say would help combat climate change by cutting the carbon footprint of ethanol production, a major consumer of Midwestern corn. But opponents express concerns about safety and potential damage by pipeline construction to farmland, some of which the companies might obtain easements for through the controversial process of eminent domain.
The Iowa Farm Bureau Federation filed a motion Friday asking the Iowa Utilities Board, which is considering a permit request from Summit for the section of its pipeline across Iowa, "to take official notice" of the PHMSA letter. The large farm organization said the document provides guidance on local, state and federal governments' authority.
Summit, asked to comment on the letter, did not answer questions regarding whether pipeline siting should be brought under federal authority but did indicate its agreement with the letter.
"In North Dakota, South Dakota, Minnesota, and Iowa, the State holds the siting authority," Summit Carbon said in a statement. "Conversely, in Nebraska, it's the counties that have this authority. We've applied accordingly, so long as officials do not attempt to regulate pipeline safety, which is preempted by federal law.”
Wolf declined to comment and Navigator did not immediately respond.
Question now: Does state law allow counties to set pipeline rules?
While welcome news to the counties, the letter doesn’t fully address the issues being debated in Iowa, said Tim Whipple, a Des Moines attorney representing seven counties that have adopted setback requirements.
“They’re saying the federal law doesn't stop states and local officials from setting setbacks,” Whipple said Friday. “But that isn't the end of the question in Iowa. … The question now becomes, does state law allow counties to set setbacks?”
Summit and Navigator have filed six lawsuits against counties in Iowa after local boards of supervisors adopted ordinances that require setbacks that the pipeline developers say preempt state and federal oversight. One lawsuit in Shelby County has been appealed to the U.S. Eighth Circuit Court of Appeals.
The PHMSA in its letter also encouraged companies to share “appropriate information with state or local governments and emergency planners, which may include dispersion models or emergency response plans" that could "help stakeholders make risk informed decisions.”
Several groups have pushed Summit to make public so-called plume modeling that would help residents better understand the impact of a pipeline rupture. Summit leaders, however, have said the federal government has encouraged the Ames company not to divulge the information in case “bad actors” seek to use it to vandalize the pipeline.
In outlining its role, the PHMSA said it is charged with regulating “the design, construction, operation, and maintenance of pipeline systems, including carbon dioxide pipelines, and to protect life, property, and the environment from hazards associated with pipeline operations.”
It said that while the Federal Energy Regulatory Commission “has exclusive authority to regulate the siting of interstate gas transmission pipelines, there is no equivalent federal agency that determines siting of all other pipelines, such as carbon dioxide pipelines."
“Therefore, the responsibility for siting new carbon dioxide pipelines rests largely with the individual states and counties through which the pipelines will operate and is governed by state and local law,” said the letter, signed by Associate Administrator for Pipeline Safety Alan Mayberry.
Big issues for pipelines remain in Dakotas
Counties’ ability to establish setback requirements also has become a hot-button issue in South Dakota and North Dakota.
In South Dakota, regulators rejected Navigator’s pipeline permit request on Sept. 6, citing concern about safety, the company’s lack of responsiveness to agency questions, and a lack of support from local farmers and landowners. It also denied the Omaha, Nebraska, company’s request to preempt local ordinances, saying the counties’ requirements weren’t unreasonable.
Navigator, which has proposed building a $3.5 billion pipeline in Iowa, South Dakota and three other states that would transport carbon dioxide to an Illinois sequestration site, has said it’s waiting to see the final order before deciding its next step.
South Dakota also rejected Summit’s permit request Sept. 11, saying the $5.5 billion project violates the ordinances in four counties. The company withdrew its request to preempt local ordinances after Navigator’s denial, saying it would refile its permit application.
In North Dakota, regulators rejected Summit’s permit request in August, citing several concerns. Among them: Some leaders in Bismarck, that state capital, opposed the project, saying the pipeline route would constrain the city's future residential growth and raise safety concerns.
Summit, seeking reconsideration of its permit, proposes rerouting the pipeline 10 miles north of Bismarck and away from areas slated for development.
In a 2-1 vote this month, the North Dakota Public Utilities Commission agreed to reconsider the project instead of making the company restart the process. That could be key for Summit, which proposes to use a North Dakota sequestration site.
