​DRC Provides Counsel for Landowners Regarding Proposed Carbon Pipeline

By Dylan Bender

dylanbender808@gmail.com

A plan that would store carbon underground in North Dakota and the pipeline that would transport it have area landowners asking questions. The pipeline would cut a wide swath through five states including North and South Dakota—specifically in McIntosh County, located in south central North Dakota. The carbon to be sequestered is waste from ethanol plants.

Landowners from the region met with representatives Scott Skokos, Elliot Huggins from the Dakota Resource Council, and Brian Jordie of Nebraska-based Domina Law Group on March 8, at the Oakes Community Center. The DRC is a non-profit organization that was formed in 1978 to protect land, air, and water resources within the state, as well as to protect the rights of rural communities, and agriculture economies.

The purpose of the evening was to inform landowners of potential hazards, liabilities, and concerns that would come with Summit Carbon Solutions' proposed Co2 pipeline, as well as discussions about easements, eminent domain, and potential legal options.

Along with the Dakotas, the 2,200-mile carbon capture and sequestration pipeline would also involve Iowa, Minnesota, and Nebraska. The current route would cross McIntosh County for 34 miles using a 24” pipe with a goal of pumping 12 million tons of captured carbon a year thousands of feet underground. The only currently proposed storage site is in North Dakota. Representatives of Summit Carbon Solutions met with McIntosh County Commissioners for the first time on March 10. A landowners meeting was held with Summit representatives in Wishek on Feb. 25.

The meeting in Wishek started with four third-party contractors representing Summit handing out gifts, gloves, caps and key chains, then offering up a small meal before opening up a Q&A session. The first landowner to speak fired off a question about the pressure to sign easements. "Why am I being told I'm the only one who hasn't settled?" A rep assured that any employee falsely representing the issue would be reprimanded or fired. Followed by inquiries as to why no Town Hall meeting had been held within the community. To which one representative stated “previous meetings have been held at Hazen, Bismarck, Oakes, and Casselton.” Although the same rep later remarked he was surprised that one couple had driven from Fargo to attend– a three hour drive, and each of the aforementioned sites is at least two hours from Wishek.

Questions about land reclamation were met by promises of "the same, if not better." As the questions ventured more into legal issues, the reps became more selective with their words. When particulars about easements were raised, representatives asked that landowners contact them to add specific clauses to their easement.

The elephant in the room was the concern about eminent domain. "We don't like to say those words," one representative said, which earned a backlash from suspicious members of the crowd.

After a few hours, the meeting ended with the promise to return for another meeting with an actual employee of Summit Carbon Solutions. Afterward, landowners held a meeting of their own, sharing thoughts on what some felt were half-answers that they had received.

On March 9, Skokos and Elliot of the DRC voiced concerns about the long-term effects of underground storage. Speaking on the sequestration Skokos said, “What's happening here is, we’re guinea pigs”

They also spoke about Co2 spills that had occurred in the past, and the effects of overexposure to the gas. Co2 is an odorless gas that can cause flu-like symptoms, as well as cause fainting and even death in cases of high exposure. It is heavier than oxygen so it tends to hang in valleys and can be slow to dissipate. After this, they opened up to audience questions and comments.

Jordie, the lawyer from Domina Law Group, has experience with landowner-pipeline issues. Referencing a case where a landowner who had purchased land without a pipeline easement accidentally hit the line while digging, and was held liable not only for the property damages but also for the revenue that the company lost by turning the line off. This led to a deeper discussion about where liability falls in the easement.

A local landowner shared copies of a letter from a local State Farm Insurance agent which stated that pollutant clauses coverage would not be paid in the event of a pipeline rupture: “Bodily injury or property damage arising out of the actual, alleged, or threatened presence, discharge, dispersal, seepage, migration, release, escape of, or exposure to contaminants or pollutants at or any source or location.” The landowner said three other insurance agencies in Oakes echoed that statement.

Jordie also gave an overview of the framework in the 5th Amendment that allows the government, and more recently, corporations, to pass through private property—eminent domain—if the project is considered to be for the public good. “But, the bar has been lowered on what is ‘public good,’” he said. To use eminent domain in ND, 52% of the easements must be acquired through landowner agreement. In McIntosh County, it is believed only three such agreements have been signed.

There’s a collective legal pool for landowners affected, Jordie noted. It’s called the North Dakota Easement Team. It’s essentially a landowners co-op for legal representation. The pool allows landowners to be collectively and professionally represented in talks with Summit, with cost reduced with each member added. Jordie urged a cautious approach. “Don’t be seduced by a dollar amount (for an easement),” he said. “Delay is the landowner's best friend.”

Multiple attendees reported about the state of the project in their counties. A man from McPherson County, SD, said that his county had recently placed a five-year moratorium on hazardous material pipelines, stating, “This has really brought people in the community together. People that used to not be able to see each other on the road, are now getting together outside the courthouse to fight this thing.”

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YOU SHOULD KNOW

eliot@drcinfo.com or call 701-997-5181

www.drcinfo.org