The Greene County supervisors paid little attention two years ago when Summit Carbon Solutions included five parcels of land in Greene County on a list of properties for which it would seek to use eminent domain for the construction of Phase 1 of its carbon dioxide pipeline from Iowa to North Dakota.
With the proposed Phase 2 cutting a diagonal across the county from Grand Junction to the southwest corner of the county, and potentially involving many more landowners, the supervisors are paying much closer attention.
County attorney Thomas Laehn at the Oct. 13 supervisors meeting reported at length on a meeting he attended last week with legislators and other county attorneys to their responses to the proposed carbon pipelines. “I have a much better sense now of the legal landscape,” he said.
There are three different approaches being taken by other counties, all of which have passed ordinances.
Some counties have passed zoning ordinances. He said one county already had an ordinance in place naming setback requirements for pipelines. He said the ordinance has been in place for decades, but the county is being sued anyway.
Some counties have passed an ordinance prohibiting surveyors from going on land with permission from the landowner. Counties are being sued of that as well.
Other counties have passed right-of-way crossing ordinances. Laehn said Greene County already requires companies to get a permit from the county engineer’s office to cross a county right-of-way. That, too, is being litigated.
“All of those would be, and it’s up to the board – I’ve never taken a position on any of this – you’re the policy makers. Those are legislative actions the county could take,” Laehn said.
He advised against prohibiting something with a disguised regulation. “You can’t say it’s a regulation when the requirements are so stringent that no one could actually build a pipeline,” he said.
“The only way this can be stopped is by the legislature in Des Moines,” he continued.
He added that taking any of the three actions he named would likely end up with the county being sued.
Another option would be to claim a pipeline would be an industrial use, requiring a pipeline company to get a conditional use permit or a special exception from the board of adjustment in order to cross parcels zoned as agricultural.
That would put the county in a precarious position, Laehn said, as it would require the county to get an injunction stopping construction until a permit was granted. “That offensive, pro-active legal action would be costly,” he said, “and it would not be covered by insurance. If you get sued, our insurance would help foot the bill. If you’re going on the offense, that’s just cost to us.
“Even if we took all those steps, it is not within the power of this board to block the project, but you can regulate it. It’s a question of whether you think it’s worth the cost to taxpayers to engage in these types of regulatory actions,” he said.
Laehn said he thinks some counties will take the industrial use approach.
He said he doesn’t think Summit Carbon Solutions would request a conditional use permit, but would plan to start construction claiming the pipeline isn’t industrial. That would require the county to go to district court to seek an injunction. If the board of adjustment is in a position to consider a request for a conditional use permit, it would be allowed to set conditions for the use of land. Those could include safety or environmental measures.
“That seems the best route,” supervisor Peter Bardole said.
Laehn said that route may not work against Phase 1, but it could work against Phase 2.
“These are just options available to the board. All of them would be costly… The fundamental position I would take is that it’s ultimately up to the legislature. To stop Phase 2 requires legislative action in Des Moines. We can’t do it. At best, we can regulate it,” Laehn said.
He advised that if the supervisors want to go the route of seeking an injunction to stop construction until the local board of adjustment okays a conditional use permit, that they work with other counties going the same route. “You could share the cost of an attorney that has expertise in this area. If there’s already 10 counties going together to hire an attorney we can chip in, share the cost, and work together collectively,” he said.
He estimated the cost would be tens of thousands of dollars, with the beginning retainer being $30,000 or $40,000. “If you’re in with 10 other counties, that spreads it out,” he said.
Hardin, Bremer, Kossuth, Floyd, Shelby and Wright Counties are now in litigation with Summit Carbon Solutions over Phase 1.
“A lot of counties are looking to us for leadership. Whether intentionally or not, we were one of the first to object to Phase 2 and other counties are following our lead,” Laehn said.
Board chair John Muir was absent from the meeting. Chair pro tem Dawn Rudolph conducted the meeting.
