Keith Puntenney is still feeling the impacts from the construction of the Dakota Access Pipeline through a corner of his central Iowa farmland.
Three acres of the land isn鈥檛 worth planting, Puntenney said, five years after part of the 1,200-mile pipeline was put under his land to carry crude oil from North Dakota to Illinois. He says the soil is compacted and doesn鈥檛 get the same yields.
鈥淭hey promised that they would remediate the soil,鈥� he said. 鈥淭hey never did.鈥�
Now another pipeline, this one carrying carbon dioxide, could be adjacent to another section of Puntenney鈥檚 farm.
鈥淒茅j脿 vu,鈥� he said. 鈥淭his is just 鈥� the same thing, different day.鈥�
Iowa company is proposing the pipeline that would run near Puntenney鈥檚 land. It would capture carbon dioxide emissions from ethanol plants in Iowa, Nebraska, South Dakota, Minnesota and North Dakota and pipe them underground to be stored in underground rock formations in North Dakota.
Two other companies are also proposing pipelines elsewhere in Iowa that would travel into several Midwestern states. While the projects are aimed at making the ethanol industry greener and more sustainable, farmers' issues with the Dakota Access Pipeline are setting the stage for another fight over land.
鈥淭he issues that I experienced and still experience five years later are not ending,鈥� Puntenney said. 鈥淭hey鈥檙e just going to happen to somebody else.鈥�
A spokesperson for Energy Transfer, which owns the Dakota Access Pipeline, wrote in an email that the company is mostly done remediating Iowa land impacted by the project and working with a few farmers to fix things. The spokesperson said the company also paid farmers in advance for three to five years worth of crop loss.
Fighting for their land
Keith Puntenney's history with the Dakota Access Pipeline started long before construction and shows how difficult it could be for farmers to keep pipelines from their property.
After the crude oil pipeline was announced in 2014, he worried what would happen if oil from the pipeline spilled and opposed its construction. But the Iowa Utilities Board signed off on the project, allowing the pipeline company to seize peoples鈥� private land through eminent domain.
Puntenney, a retired tax attorney, fought the board and the pipeline all the way to the , where the high court sided with the utilities board. It was a bitter disappointment.
鈥淲e expected them actually to rule in our favor,鈥� he said, 鈥渂ecause there had never been an Iowa Supreme Court case on an interstate pipeline, benefit out of Iowa given eminent domain. That was the first time that it happened.鈥�
Eminent domain, the power of the government to seize peoples鈥� private property for a public purpose, has been used for projects such as water infrastructure, highway and pipelines, said University of Iowa law professor Shannon Roesler.
鈥淥ne of the first things you learn in law school in your first year property class is that property rights are a lot less absolute than you probably assumed,鈥� Roesler said.
, a 2005 Supreme Court Case, held that governments could condemn private property for public use, even if the public use was just economic development. Some states followed the court鈥檚 interpretation, but others, like Iowa, did not.
For eminent domain to be applied in Iowa, Roesler said there has to be a public purpose beyond economic development.
鈥淭he question for the carbon pipelines,鈥� Roesler said, 鈥渋s what is the extra benefit to Iowans from shipping carbon from ethanol and fertilizer plants out of state? Extra meaning more than just revenue from taxes and jobs.鈥�
The carbon dioxide pipeline companies say the projects will extend the viability of the ethanol industry, an important part of Iowa鈥檚 economy. They also promise environmental benefits, said Elizabeth Burns-Thompson, a spokesperson for Texas-based Navigator CO2 Ventures, one of the pipeline companies.
鈥淭hese are truly taking CO2 that otherwise would have been emitted in some of our small communities across our states,鈥� Burns-Thompson said. 鈥淭his isn't just offsetting an emission, on one coast to the other, this is truly preventing an emission that would have happened in some of our backyards.鈥�
鈥業t鈥檚 a living nightmare鈥�
Richard and Phyllis McKean live seven miles outside of Armstrong in northern Iowa and have more than 900 acres of farmland. Some of the land has been in the McKean family for more than a century.
Navigator CO2 Ventures鈥� proposed pipeline would cut diagonally across their land, which the couple can see from their living room window. 鈥淲e don鈥檛 want it,鈥� they both declared numerous times while sitting for an interview.
鈥淚t鈥檚 a nightmare,鈥� Richard McKean said. 鈥淚t鈥檚 a living nightmare. Because it'll be right smack in front of our house. It's hazardous material.鈥�
Both Richard and Phyllis want the Iowa legislature to 鈥渆qualize鈥� the law around eminent domain so landowners have more power. A proposed, but so far it has only passed in the Iowa House of Representatives.
鈥淚t makes a person angry,鈥� Phyllis McKean said. 鈥淭hat this is private property. And they think they can come in and do what they want to.鈥�
The McKeans are familiar with how other farmers struggled with the Dakota Access Pipeline and the heavy disturbance to the soil. Richard McKean, now retired, used to run a drainage installation business.
鈥淚鈥檝e spent a lifetime on the farm working with drainage,鈥� he said. 鈥淚 have moved soil, I鈥檝e trenched, I've plowed tile. Once you disturb that soil 鈥� you never get it quite back the same way it was.鈥�
The land the McKeans own is pattern tile, which means they have tubing parallel to one another buried underground to help drain excess water from their fields. They worry the pipeline companies would cut the tile lines for construction, disrupting more acres than just those in the pipeline鈥檚 path.
鈥淎 drainage system is like a highway,鈥� Richard McKean said. 鈥淲hen you disrupt a portion of it, you basically have damaged the use of the rest of the drainage system.鈥�
Pipeline companies 鈥榦n the hook鈥� to restore farmland聽
Navigator CO2 Ventures would be obligated to make the proper repairs if there was any harm done, for instance, to the McKeans' drainage system, said Navigator鈥檚 Elizabeth Burns-Thompson.
鈥淚n year three, four or five, if it鈥檚 just not repaired correctly and they had any kind of flooding or any damage to the property and any impact to their crops, we鈥檙e on the hook for that,鈥� she said. 鈥淲e have to keep them whole for that.鈥�
Navigator hasn鈥檛 filed a permit application in Iowa yet. Neither has Archer Daniels Midland and Wolf Carbon Solutions for their proposed project in Iowa and Illinois. But Iowa company Summit Carbon Solutions has with the Iowa Utilities Board.
The permit application鈥檚 says Summit will pay landowners for 100% of the crop lost to production in the first year after construction, 80% of the loss in the second year and 60% of the crop lost in the third year.
Jimmy Powell, the chief operating officer for Summit Carbon Solutions, said the company expects there to be a short-term impact to farmland because of the construction.
鈥淏ut we think with following the [Iowa Utilities Board] requirements for reclamation, our ag impact mitigation plan, that we鈥檒l reclaim the property back to as found or better condition,鈥� Powell said, adding that the 鈥渋mprovements the board put in place will mitigate the risk to the landowner.鈥�
In the construction of the Dakota Access Pipeline, an found construction tore up the land before compacting it so much that it couldn鈥檛 support crops as it had before. crews worked to install the pipeline while the soils were wet, which compacted soil.
"We try to make sure that any lessons that we can glean from Dakota Access or any other project, we incorporate as best practice into this."Jimmy Powell, Chief Operating Officer for Summit Carbon Solutions
Last year, the Iowa Utilities Board adopted for how companies must restore farmland after pipeline construction. Among those rules, pipeline companies can鈥檛 remove topsoil in wet conditions. A spokesperson for the board said companies working on pipelines are required to follow these rules 鈥渦nless the landowner agrees to different requirements.鈥�
Summit Carbon Solutions, Powell said, is trying to 鈥渋ncorporate lessons learned鈥� from the Dakota Access Pipeline. The carbon dioxide pipeline will be smaller than the Dakota Access Pipeline, he said, and won鈥檛 require much large equipment to build it.
鈥淭he compaction and disruption will not be on the same scale as Dakota Access,鈥� Powell said. 鈥淪till, we try to make sure that any lessons that we can glean from Dakota Access or any other project, we incorporate as best practice into this.鈥�
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