CO2 Pipelines - Update
Carbon pipelines were the topic of the October 2022 UMRR meeting - this UMRR blog post has the video and lots of information. Now, as companies are seeking landowner and regulatory permissions to build CO2 pipelines, there have been some events that can affect the process.
Today (March 28) in Iowa, House File 565, which restricts the use of eminent domain to build carbon pipelines, passed the Iowa House in a bipartisan vote with 73 votes in favor and 20 against. This bill moves to the Iowa Senate Commerce Committee now - it must pass there by March 31 to move on.
In Illinois, the Coalition to Stop CO2 Pipelines has obtained documents under the Freedom of Information Act showing Navigator's 1350-mile CO2 pipeline project would cross over 1800 waters of the U.S. and impact over 150 acres of wetland. The project also includes horizontal directional drilling under major rivers, such as the Illinois and the Mississippi. According to a post on the Coalition's website, the U.S. Army Corps of Engineers is ready to permit the project, not as a one complete pipeline, but as 1800 separate projects, under its expedited Nationwide permitting program. This will allow the pipeline to proceed without a full environmental review or any public comment. There is an Action Alert on the site to reach out to Corps officials and US Senators and members of Congress requesting a more robust permitting process. There is also a bill in the Illinois legislature to restrict pipeline expansion.
An article on Reuters website provides a broader update on pipelines. They report that Navigator CO2 Ventures’ proposed carbon pipeline project in the U.S. Midwest is struggling to secure a site to store millions of tons of greenhouse gas it hopes to collect from the region’s ethanol plants, as residents refuse to give up land rights over fears the underground reservoirs could leak, according to documents reviewed by Reuters.
Also at issue in Illinois is the regulation of "pore space", the airspace between bits of rock and soil where CO2 would be stored. Who owns the 'nothing' in the soil under our feet? An article posted on the Newburn Law website examines this issue. This article provides some background on the issue as well as an analysis of laws pertaining to the use of pore space.
"One of the emerging issues around CCS is who owns the pore space in the ground. Under United States' land rights laws, the person who owns the pore space in the ground is generally the person who owns the surface estate—that is, all the land above the pore space. Of course, a landowner can sell the right to mine the underlying ground soil for minerals.
More and more, energy companies are seeking out land with underground pore space to implement their CCS technology. CCS is usually employed deep underground. The issue for companies wanting to use CCS is whether they must pay the surface owners for use of the underground pore space. Of course, this raises issues of private property rights.
Does the surface owner of the land own all of the pore space beneath it? What if someone else owns the mineral rights to the land? Do they also own the pore space?
Whether a landowner can divest their rights to the pore space under their land, who has the rights to the pore space, and the value of the pore space, are all complicated and novel legal issues courts are just now starting to address."
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