Iowa law allowing surveyors on property for carbon capture pipeline ruled unconstitutional
Donnelle Eller, Des Moines Register
5 min read
An Iowa judge says a state law allowing pipeline companies to survey property owners' land without permission is unconstitutional, delivering a victory to landowners who've been battling against three proposed carbon capture pipeline projects.
John Sandy, a Clay County district judge, ruled Wednesday that a company's surveyor entering property without consent to determine if a hazardous liquid pipeline can be built across it is a "government taking without providing just compensation," violating the Iowa and U.S. constitutions.
The ruling came after Navigator CO2 Ventures sued Martin Koenig last year, saying he had repeatedly blocked the Omaha, Nebraska, company from surveying his land near Sioux Rapids in northwest Iowa. Navigator, one of three companies that want to build a carbon capture pipeline across Iowa, said state law allows a pipeline company to enter private property to survey the land to determine the "direction or depth of pipelines" after holding a public hearing and giving the landowner 10 days' notice.
An opponent of carbon capture pipelines during a rally March 22 at the Iowa Capitol in Des Moines.
Navigator complied with the requirements, then sought an injunction to force Koenig to provide access. Koenig countersued, claiming the state law was unconstitutional.
Navigator said in an email Wednesday it would appeal the ruling to the Iowa Supreme Court. The company said it "believes that further review will uphold the constitutionality of the statute, aligning with the conclusions reached by courts in neighboring jurisdictions."
The Iowa Utilities Board, whose members' duties include oversight of pipeline construction, said Wednesday it won't comment on pending or current litigation.
About two dozen similar suits pending in Iowa, South Dakota
Navigator, along with Summit Carbon Solutions and Wolf Carbon Solutions, have proposed capturing carbon dioxide emissions at ethanol, fertilizer and other industrial agriculture plants in Iowa, liquifying the gas under pressure and transporting it through hundreds of miles of pipelines to either Illinois or North Dakota, where it will be sequestered deep underground.
The pipeline projects have encountered widespread opposition in Iowa, where thousands of residents have filed objections with state regulators. Many of them focus on the possible use of eminent domain to force unwilling landowners to sell access to their land for the pipelines' construction. Residents also have voiced concern about the pipelines' safety and the impact construction would have on farmland and underlying drainage systems.
Landowners have filed about two dozen similar lawsuit elsewhere in Iowa and in South Dakota. Brian Jorde, Koenig's attorney, said he hopes the judges in those cases will consider the ruling in favor of his client when making their decisions.
Judge: protecting the 'right to exclude'
Key to the Sandy's ruling was determining whether a landowner should be compensated for losing the right to exclude someone from their property. Sandy wrote that the U.S. Supreme Court has consistently emphasized that the "right to exclude is ‘one of the most treasured’ rights of property ownership" and “universally held to be a fundamental element of the property right.’"
Because of the “central importance to property ownership” of the right to exclude, courts have long treated “government-authorized physical invasions as takings requiring just compensation,” Sandy wrote.
He noted that Koenig maintained the Iowa Code is unconstitutional because the "statute allows for a per se taking without just compensation," stripping landowners of their right to exclude "by statutorily allowing pipeline companies to come onto private land to perform certain surveying operations."
Additionally, the state law "does not provide for just compensation," as required under the Iowa Constitution, Koenig argued, according to the ruling.
Sandy wrote that "when the government physically occupies private property, such physical appropriations are the 'clearest sort of taking,'" adding that “the government must pay for what it takes.”
"However, a different standard may apply when the government imposes regulations which restrict a private land owner’s ability to use his own property," Sandy wrote in the ruling. While property "may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."
Attorney: States can require access, but must provide compensation
Jorde, Koenig's attorney, said the lawsuits aren't designed to stop the pipelines. In fact, state Legislatures can make changes that enable companies to survey land for pipelines, he said.
A protester holds up a sign at a rally at the Iowa Capitol on Feb. 21.
A "Legislature could say, 'Well, we're gonna go ahead and allow it.' OK, that's fine, but just understand it's a taking and now we have to follow the process" for compensation, said Jorde, whose firm, Domina Law Group of Omaha, is representing about 1,000 Midwest landowners who oppose carbon capture pipelines.
"We just want to make sure that the law ... protects landowners and doesn't violate their rights," he said
Jesse Harris, a spokesman for Ames-based Summit, which is pursuing cases similar to Navigator's, said in an email Wednesday the company will closely review the ruling. Summit said it's making progress on gaining voluntary easements, securing about 1,375 miles of the pipeline's 2,000-mile route. The pipeline will stretch into Minnesota, Nebraska and South Dakota, terminating at the sequestration site in North Dakota.
"This overwhelming level of support is a clear reflection that landowners view the project as safe and critical to supporting the region’s most important industries — agriculture, ethanol and energy," said Harris.
Pipeline supporters say the projects will enable ethanol and other energy-intensive agricultural industries to remain viable as the nation seeks to cut net greenhouse emissions in half by 2030 to address climate change.
Jorde said he hasn't investigated whether the ruling could impact other infrastructure projects, like building transmission lines or natural gas pipelines.
The "statute specially deals with hazardous liquid pipelines," he said. "I haven't looked at other laws to see if they're the same."
Donnelle Eller covers agriculture, the environment and energy for the Register. Reach her at deller@registermedia.com or 515-284-8457.
