The latest legal challenge to Summit Carbon Solutions' carbon dioxide pipeline is a case pending before the Iowa Supreme Court on whether the company has the right to conduct surveys on private land.
The court gave little indication of how it was leaning after arguments that took less than an hour last week between attorneys for landowners and Summit. The company wants to build a 2,500-mile pipeline through Iowa, Nebraska, Minnesota and the Dakotas to collect CO2 from 57 ethanol plants and move it to a permanent storage site in North Dakota. The proposal is to transport liquefied carbon dioxide, though that also is in dispute, with landowner plaintiffs claiming it is in a "supercritical" phase.
But since the $8 billion project was announced in 2022 to take advantage of an $85/ton tax credit for permanently stored CO2, Summit has faced opposition from landowners in the pipeline’s path. Some are concerned about damage to farmland. Several lawsuits have been filed, including recent challenges to conditional approval granted by the Iowa Utilities Commission.
Summit cannot begin construction in Iowa without gaining approvals for its sequestration site in North Dakota and for its pipeline routes in that state and South Dakota.
Just before the IUC decision, the company lost a case in the South Dakota Supreme Court, which ruled for landowners that it was premature to conclude Summit is a common carrier. It also is awaiting a decision from the North Dakota Public Service Commission on the company’s proposed new route, developed after the PSC rejected its first map.
Landowners appealed to the Iowa Supreme Court after losing in state district court.
Brian Jorde, attorney for landowners in Iowa and other states including South Dakota, said Summit has “been on the ropes since they were concocted a couple years ago. It's a startup that's never run a pipeline, never operated one, and they're unfit to do so. They continually prove that in how they treat people throughout the various states.”
“I mean, when the CEO tells a group of supporters to ‘pray for us,’ I think that pretty much sums it up,” he said, referring to an address SCS CEO Lee Blank gave at an ethanol conference in Nebraska in March, according to Bloomberg.
Jorde said a decision in his clients’ favor would amount to “basically returning some sanity to the process and giving people a chance to breathe so they don't feel pressure to just sign” an agreement offered by Summit.
Brian JordeSummit Carbon Solutions says on its website it is "a community partner and will work with landowners, community leaders, stakeholders and more with respect, honesty, and transparency. We prioritize safety throughout the construction and operation of its project. While this project is revolutionary to the agricultural industry, the technology is well-studied. Carbon capture technology is already in use at more than 30 ethanol plants and there are 5,000 miles of CO2 pipeline in operation in the United States."
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In response to questions from Agri-Pulse, a Summit spokesperson said the company still expects to begin construction next year, "with operations starting in 2026."
The company also said it plans to apply soon in South Dakota. "Regarding Iowa, we are confident in our legal right to survey land under Iowa Code, which allows for entry after informational meetings or petition filing with proper notice."
Summit says it has secured 75% of the base route in Iowa, 75% of the previous route in South Dakota, 82% in North Dakota, and 89% in Minnesota, "and we continue to work with landowners every day."
In the arguments, Jorde and Summit attorney Ryan Koopmans differed on the impact of a decision finding for landowners that Summit’s land surveys have been unconstitutional. Asked by Justice Thomas Waterman about the impact on public utilities, Jorde said there would be none.
“This is such a narrow statute that the sky will not fall if you go with landowners on this particular case," Jorde said.
Koopmans disagreed when Waterman asked about impacts on “survey access for private and governmental entities” if the court decided Iowa’s law amounts to a taking of private property.
Koopmans said such a ruling would be like “an on or off switch.”
“Either we all get survey access or none of us do,” he said. “If we don't have it, then Iowa DOT [Department of Transportation] doesn't have it. Railroads don't have it. Electric utilities don't have it.”
Landowners' attorney Jorde called Summit’s approach akin to “kicking the tires.”
“You cannot have a pre-condemnation survey exercised by an entity that does not have condemnation [authority] and isn’t invested with the power of eminent domain,” Jorde said. “So the state of Iowa is vested as a government with the power of eminent domain. There is no question. So they go out and survey for pre-condemnation. They are already a condemnor.”
“When Summit in September 2022 filed this petition for injunction, they weren't a condemnor. So they want to go out and kick the tires on a car that they legally can't purchase, and do so on a dealership that they don't have the right to access.”
Koopmans said Iowa first passed a survey access law in 1851 for a railroad company, before the state constitution was ratified, and said a license to conduct a pre-condemnation survey “is inherent in the title” of property owners and is thus a “background principle” of property law.
“Courts across the country acknowledge that survey rights are longstanding background restrictions on property and do not constitute a taking,” the Iowa Utility Association and Iowa Association of Electric Cooperatives said in an amicus brief filed in the case.
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