Along the Route: The fight over eminent domain and the right to private land

SIOUX CITY, Iowa — Eminent domain as described by Cornell Law School refers to the power of the government to take private property and convert it into public use. The Fifth Amendment states that the government may only exercise this power if they provide just compensation to the property owners.

"Eminent domain was put into effect for the good of the public," said Roger Schmid, a landowner in Woodbury Co. Iowa. "And I don't see this, it's not a commodity that's going to be used by anybody. It's strictly a private corporation in it for the money to take the carbon credits from the government."

Roger Schmid is one of more than a dozen landowners and private citizens in Northwest Iowa who are fighting to keep their land out of the hands of two liquid CO2 pipeline companies.

"I'm probably the only one here who does not have land affected by this," said Doyle Turner. "To me, the real issue is the eminent domain. And what I'm seeing is that our state and federal government, or especially our state, has decided to use the Iowa Utilities Board, rather than controlling a monopolistic company, which all these companies are by nature, rather than doing that they're actually creating a monopoly and there is no reason why the CO2 should not be accessible by these landowners."

Summit Carbon Solutions and Heartland Greenway's Navigator CO2 Ventures are two liquid carbon capture pipelines routed for the central United States. These two companies are working with landowners to agree on voluntary easements for the installation of the projects.

"We are doing everything in our power to reach out," said Lee Blank, CEO of Summit Carbon Solutions on getting the proper easements from landowners, "and again, we spent hundreds of millions of dollars to economically solve these easements without ever having to talk about eminent domain."

"So at its core, we are truly disincentivized from utilizing eminent domain, such that it makes as much business sense to do as much as voluntary as possible," said Navigator's Elizabeth Burns-Thompson with Navigator CO2.

LANDOWNERS WEIGH IN

Both companies are offering lucrative deals for access to private property with a promise to have that land back in working order in just a few years. For those I spoke to at our Siouxland News studios, one of their biggest issues was the use of eminent domain for a project like this. I shared the following statement from Burns-Thompson with the panel.

"To think that you can develop an interstate transportation system like this, without some application of eminent domain is unlikely. However, what I think is important also is to evaluate the tenant or the foundation of what is eminent domain and unfortunately, it has been so significantly mischaracterized to the public. At its core, eminent domain does not save us time. It does not save us money, and it doesn't make us any friends."

Deb Main: Well that's true. That's the first true thing I have heard her say.

Roger Schmid: That's pretty obvious.

Vicki Hulse: I'm not going to be your friend.

Katie Copple: So are you going to fight until you get to the possibility of eminent domain? And fight that?

(Collectively) Absolutely.

Doyle Turner: I think the eminent domain, for me, is the largest factor. This sets a horrible precedent for all landowners in the state.

Schmid: Once you take that out of the bag, what do you do, where does it stop? You have a private corporation taking private land for their good. Not for the public good overall. That just opens up a large can of worms.

Copple: So would you agree with what she said that the public may not understand what eminent domain is if they are not directly impacted by it?

Main: I'm offended that she's calling me stupid. I really am.

Copple: And maybe not just landowners, but I had no idea what it was until I started digging into this a bit more and I had to learn about it. Do you think the public, the general public that isn't affected by this, maybe don't understand what eminent domain really means?

(Collective) Yes.

Turner: But also, there is a legitimate use for eminent domain. We need eminent domain to put up roads. We need eminent domain to do actual utilities that serve the public. And this is an abuse of a legitimate process that we legitimately use to make our lives better and this is not going to make our lives better, this is going to make one or two corporations a lot of money and it puts our lives in danger.

Hulse: But it’s also setting a precedent for other companies to come in and abuse eminent domain for private gain. If it’s not stopped... I mean it could go on to hurt other landowners, not just the ones affected by this hazardous pipeline.

THE FUTURE OF EMINENT DOMAIN

Summit and Navigator say using eminent domain is a last resort, but necessary to get their pipelines in the ground.

"Ultimately there would be a process where we may have to use eminent domain to work through these various last few that we would have," said Blank. "We would anticipate the percentages of that being extremely small. Because we continue to push the economic solution.

The use of eminent domain dates back to 1876 when federal officials wanted to condemn private land in Ohio to build a custom house and post office building. Since then, eminent domain has been used to build roads and railways, construct public buildings, and even acquire land for public parks.

Today, the discussion over eminent domain made it to the Iowa State House. State lawmakers advanced a bill in the Iowa House that would restrict the use of eminent domain for pipeline companies until they secure 90% of their proposed route with voluntary easements.

"I don't believe that eminent domain should be used for what is a private economic development project," said State Rep Steve Holt of Denison who spearheaded the bill. "I don't have an issue with the CO2 pipelines. I have an issue with other people's property being taken for what is an economic development project and I think where that's where we confuse public use for public benefit."

The bill was effectively killed in the State Senate, and ultimately stopped its progress until another legislative session.

These two multi-million dollar companies continue to say they don't want to rely on eminent domain to get the job done.

"We would fully anticipate the percentages across the entire system, if we have to do anything that might be more along the eminent domain, a discussion will be very small," said Blank.

"So eminent domain for you is a last resort?" I asked Burns-Thompson.

"Eminent Domain is an absolute last resort," she responded.

This group says they aren't against eminent domain at its core. For them, it's the use of eminent domain for a project they feel isn't for the public good but for private gain.

Hulse: What is the public good?

Schmid: And that is what it’s supposed to be used for, for the public good. And usually, it’s a commodity such as a pipeline, an oil pipeline, or a gas pipeline, where it’s a project or it’s a road or rural water, it's a commodity.

Hulse: What's the public good in this, I don't know.

Schmid: It’s being used for the wrong purpose.

FOLLOW FOR MORE

"Along the Route: A Pipeline Discussion" is a multi-part series of reports looking at everything from the companies that want to build them to those "for" and those "against" and a deeper dive into to carbon and ethanol industries at the center of the project.

Over the next several weeks, Siouxland News Anchor Katie Copple will be sharing a series of stories, which you will find linked below as they air every Tuesday and Wednesday evening on Siouxland News at 9 on FOX and Siouxland News at 10 on CBS.

Bookmark this story here to find the entire series as it airs on Siouxland News.

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Have a pipeline story you want to share? Send Katie an email: klcopple@siouxlandnews.com.