Counties taking action against eminent domain for carbon capture pipeline

KINDRED, N.D. — Todd McMichael looks out over pasture land that his family owns along the Sheyenne River expecting to see prairie chickens, deer and pheasants.

When it greens up, there will be cattle grazing on the land near Kindred, North Dakota, that has never been tilled.

What he doesn't want to see is workers sinking a pipeline into the ground.

McMichael describes himself as becoming a "mouthpiece" for landowners in the path of the Summit Carbon Solutions pipeline in North Dakota who object to the threat of eminent domain to gain right-of-way for the pipeline.

He made a presentation in front of his county board in March, which unanimously adopted a resolution: "That the Richland County Commission officially opposes eminent domain for the Summit Carbon Solutions Pipeline within Richland County, North Dakota."

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Neighboring Sargent County has passed a similar resolution. McMichael says there are presentations soon to be made in Dickey and Emmons counties and conversations taking place with landowners in Burleigh and Morton counties.

He said he and other landowners are making the case “knowing that it more than likely will not have the teeth … if the state decides to site this," McMichael said. "But we are hoping to get noticed in Bismarck; that a lot of landowners are against this project and how it’s being handled.”

The pipeline will stretch west to Mercer and Oliver counties, where Summit plans to pump liquid carbon dioxide underground for permanent storage. The carbon dioxide is to come from 31 ethanol plants across five states connected by 2,000 miles of pipeline.

Summit says the project would reduce greenhouse gas emissions and help keep the ethanol industry viable as place for farmers to market their corn.

McMichael says he's in regular contact with about 75 people on the pipeline issue. He's also made connections with pipeline opponents in other states.

Summit already has applied for permits in Iowa and South Dakota. The public dockets with the Iowa Utilities Board and South Dakota Public Utilities, where people can submit comments, are overwhelming against the pipeline.

In Iowa, 26 counties touched by the pipeline have filed objections to carbon pipelines. There also have been efforts in the Legislature there to limit the Iowa Utilities Board's ability to grant eminent domain authority.

In northern South Dakota, McPherson County has issued a moratorium on pipeline construction, but Bruce Mack, an organizer of opponents there, said that is part of county effort to upgrade its zoning and there are moratoriums against large hog barns and wind turbines also. But he added that there is "very stiff opposition" in the county.

"Bottom line is, nobody wants this thing," Mack said.

A letter of opposition filed April 5 by commissioners of Brown County, which includes Aberdeen, reads, in part: "The farmers who will be affected by this pipeline are refusing to sign easements that are being offered to them by SCS Carbon Transport. This company is using strong-arm tactics in response to the refusal to sign these easements. The affected farmers fear the inevitable use of eminent domain and the loss of private property rights.

"There is great concern about the safety of the SCS Carbon Transport pipeline. With the pipe being placed only four feet underground and at 2100 PSI, if this pipeline should happen to rupture, there could be serious human and animal consequences."

McMichael shares those concerns, with his property being very rugged and remote should there be a need for emergency access.

Jeff Beach / Agweek

Liquid carbon dioxide is a hazardous material, and a rupture of a carbon dioxide pipeline in Mississippi sickened dozens of people. Opponents add that carbon dioxide can render emergency vehicles useless by robbing the air of the oxygen needed for gas engines to run.

Across the Red River from Richland County is Wilkin County, Minnesota, where a pipeline from the ethanol plant in Fergus Falls, Minnesota, would run. While Wilken County has taken no stand against the pipeline or eminent domain, Commissioner Eric Klindt said he would not be in favor.

Minnesota has no state agency empowered to oversee carbon pipelines, likely leaving Summit to negotiate with individual counties.

Perry Miller, the Richland County commissioner who made the motion to adopt the anti-eminent domain resolution, said the commission "was approached by a significant number of farmers" with concerns about the project.

Summit is offering compensation to landowners, but Perry said, "I don't think it's a matter of price."

Summit will need to file for permits with the North Dakota Public Service Commission for the pipeline and the North Dakota Industrial Commission for the storage site.

The three-person Industrial Commission includes Gov. Doug Burgum, who has been vocal in his support of carbon capture projects as a way for North Dakota to become carbon neutral by 2030. He praised the Summit project and the principal person behind the project, Bruce Rastetter of Iowa-based Summit Agricultural Group.

Evan Girtz / Agweek

In March, they shared a stage at Tharaldson Ethanol in Casselton, the only North Dakota plant involved in the project, when oil company Continental Resources announced it would invest $250 million in the project and lend its expertise in North Dakota geology.

When North Dakota landowners first started getting letters about the project, Burgum went on KFGO radio in Fargo and said there was "zero" chance that eminent domain would be used for the project in the state.

In an emailed response to Agweek on April 11, Burgum's office said: "Based on conversations with Summit Carbon Solutions, their goal is to reach right-of-way agreements with individual landowners without using eminent domain, and the governor supports that direction."

But if the pipeline is deemed a "common carrier," as oil pipelines serving multiple companies in North Dakota have been, the threat of eminent domain appears very real.

"It does seem that a private company can use eminent domain due to loopholes we have within the law in North Dakota," McMichael said.

In an emailed statement, the pipeline company said, "Summit Carbon Solutions has been working closely with landowners and policymakers at the county, state, and federal levels to review the project and answer any questions they may have. As part of those discussions, we have attempted to highlight how our proposed project utilizes long-standing, proven, and reliable technologies that are safe for landowners and the communities where we plan to operate. Given that, we believe the current regulatory process works and works well."

Summit says it will file its permit application in North Dakota "in the near future."

Summit would like to start construction in 2023 and have the pipeline operating in 2024.

While liquid carbon dioxide can be used for enhanced oil recovery, Summit has said that is not in its business plan .

Troy Becker / The Forum

McMichael has this advice for other landowners in the path of the pipeline.

“Be patient. Don’t be so anxious to sign their easements," he said. "And make sure you get legal counsel to review the easement before you sign it.”

Jeff Beach / Agweek