Iowa Supreme Court Upholds Carbon Pipeline’s Authority to Survey Private Property

Summit Carbon Sols., LLC, v. Kasischke, __N.W.3d __ (Iowa 2024)

The Iowa Supreme Court issued an important decision on November 22, 2024, upholding carbon pipelines’ statutory authority to survey private property.  At issue was whether those surveys constitute a taking. 

Summit Carbon Solutions is one of three companies currently developing a major pipeline in the Midwest for carbon capture and storage.  The others are Wolf Carbon Solutions and Tallgrass Energy.  Navigator CO2 Ventures canceled a similar project last year.

Summit sought access to survey land along its pipeline route.  Iowa law permits a pipeline company, after notifying the landowner, to “enter upon private property for the purpose of surveying and examining the land.”  Iowa Code § 479B.15.  The pipeline company must pay “actual damages” from the survey.  Id.  If a landowner refuses, this pre-condemnation survey “may be aided by injunction.”  Id.

When a landowner in Hardin County, Iowa, refused Summit’s survey, Summit sued for an injunction.  The landowner counterclaimed.  He asserted Iowa Code section 479B.15 was an unconstitutional taking of private property.  He also contended Summit had failed to satisfy pre-survey procedures.

The Iowa trial court entered judgment for Summit.  On appeal, the Iowa Supreme Court affirmed. 

The court held survey access does not unconstitutionally take a landowner’s private property.  To the contrary, “section 479B.15 is a lawful pre-existing limitation on his title to the land.”  Survey access for a public purpose is a longstanding background restriction on private property.  This restriction existed in early American law and remains throughout Iowa’s statutes. 

Survey access also is a narrow land restriction.  It permits a single intrusion for a limited purpose.  That distinguished the statute from the California regulation that impermissibly gave union organizers up to 30 hours per year of private-property access in Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021).

Additionally, the court affirmed Summit had satisfied pre-survey procedures.  To conduct surveys under Iowa Code section 479B.15, a pipeline must transport “hazardous liquids,” including “liquified carbon dioxide.”  § 479B.2.  The Court held Summit’s pipeline will transport carbon in both a liquid and supercritical phase.  The court held both qualified.  Record evidence showed “supercritical carbon dioxide is a fluid and flows as a fluid would.”  Summit had also satisfied pre-survey notice requirements.

This decision is a victory for carbon-pipeline operators.  Survey rights will help Summit and others to evaluate land suitability along their pipeline routes.

Attorneys at Baird Holm specialize in various subject matter areas including land use, energy regulation and litigation.  Please contact us with any questions.