CO2 pipeline company plays hardball as Iowa counties fight back

In Iowa, deep-pocketed corporations are hoping to build carbon dioxide pipelines across hundreds of miles of farmland. But county governments are putting the brakes on development by passing ordinances to protect people in the pipelines’ path. In response, Summit Carbon Solutions, the company farthest along in the state’s permitting process, is punching back, filing federal lawsuits to overturn the ordinances and forcing counties to spend scarce taxpayer dollars to defend themselves.

“This is a tactic of their playbook, and it’s a very effective one,” said Jane Kleeb, founder of the nonprofit Bold Nebraska, which helps landowners organize to fight pipelines. “During the Keystone XL pipeline fight, every time a county got ready to pass a zoning law, the pipeline company would come in with a team of suits and threaten to sue.”

The lawsuits specifically target Iowa’s Shelby and Story counties, which were the first to pass ordinances requiring that these pipelines– which will carry CO2 from Iowa ethanol plants to sequestration sites out of state – be set back from residences, churches, nursing homes and other places where people live and gather. Voted into law last month, the ordinances also call for the pipeline companies to provide an emergency response plan and a computer-modeled estimate of the dispersion of CO2, a known toxicant that can be lethal if a pipeline were to rupture.

“We have a right to know how dangerous this is,” said Steven Kenkel, chairman of the Shelby County Board of Supervisors, who pointed to a 2020 carbon dioxide pipeline rupture in Satartia, Mississippi, that hospitalized 45 people. “We want to know what the blast zone is, what the fatality zone is, what the danger zone is, what’s the worst case scenario.” Summit has refused to provide such information, despite an order from the Iowa Utilities Board (IUB). The company claims that because federal law regulates safety standards for interstate pipelines, it is exempt from any local or state safety requirements.

Each county is considering slightly different setback requirements. Shelby calls for 1,000 feet between pipeline and residences; Story, which also calls for buffers around wetlands, would use a formula that depends on the diameter of a CO2 pipeline, noting that a six-inch pipeline would require a minimum of 1,670 feet. But it’s not clear that even those setbacks would protect people. Richard Kuprewicz, a pipeline safety consultant who has testified before Congress, said that when a CO2 pipeline unzips, the gas moves quickly through the landscape. “It happens in microseconds,” he said. “The pipeline ruptures and [the plume] can travel thousands of feet if not miles.”

While the federal lawsuits will take time to wind through the courts, the question of whether pipeline companies are required to provide safety information to state or local authorities will be addressed for the first time on Tuesday, December 13, when Summit and county attorneys present oral arguments before the IUB. Timothy Whipple, an attorney who represents Shelby County, will argue that Summit’s preemption claim is flawed. While the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) sets safety standards for the design, inspection, emergency plans and maintenance of pipelines, he says, it doesn’t preclude state and local governments from considering safety when siting a pipeline. “As long as you don’t impose a requirement that would make it difficult for the pipeline company to comply with the federal safety standards,” Whipple says, “then we believe you can consider safety when looking at the pipeline’s route.”

Wally Taylor, attorney for the Iowa chapter of the Sierra Club, agreed. He said the federal Pipeline Safety Act, which PHMSA administers, specifically states that it does not regulate the routing and location of pipelines. “It’s pretty clear that counties have the authority to put conditions on where the pipelines can be located,” he said. Because Summit’s suits make the same argument, he added, the company probably filed them as an intimidation tactic. “They’re sending a message to the other counties: Don’t do this in terms of passing an ordinance or you’re going to find yourself in federal court, too.” Summit representatives did not return messages seeking comment.

Templates of the two ordinances have been circulating among numerous county zoning boards for months, and Summit officials have noticed. In September, as the Montgomery County zoning board convened to review the Shelby County ordinance, Grant Terry, a senior project manager with Summit told the board, “We do not plan to follow what is in place in this ordinance in regards to Shelby County.” Terry said that the ordinance had been “put in place” by Kleeb’s organization, which he called a known “eco-terrorist group,” and that Kenkel, the Shelby County supervisor, was “a sitting member, an active member of Bold Nebraska.” (Bold Nebraska is not a membership organization.)

Kenkel said he talked to many different people and organizations, including Kleeb’s group, over many months as he worked to figure out how his county could craft a legal ordinance that would address constituents’ safety concerns. “In my ten years as a supervisor, this is the most consuming project that I’ve ever worked on,” he said, tearing up. “But I don’t want my kids, my grandkids or my great grandkids to say someday, ‘What the hell was Grandpa thinking?’ I want them to know I tried to fight back.”