We are pleased and excited to announce that David Ferree will be speaking at the upcoming Continuing Legal Education event for the National Business Institute on Tuesday, December 5, 2017, in Des Moines:
A great deal of ink has been spilled writing about the Bakken Pipeline currently being built across Iowa and how eminent domain is being used to acquire the land for the project. Not all of the writings have been entirely clear and some of the statements quoted in articles have not been entirely accurate. This post attempts to provide readers enough information about a) the power of eminent domain and b) the Iowa Utilities Board (IUB) decision about the Bakken Pipeline to provide at least a basic understanding of the issue. For those who are interested, the complete decision can be found here (PDF).
For those who are unfamiliar with the power of eminent domain, it is the power of the government to take private property for a public purpose. The government has to pay for the property it takes, but it has the right to force private property owners to sell. At the outset, that power rests entirely with the Iowa legislature, but the legislature can delegate the power to other entities. It has done so many times. For example, it granted the power of eminent domain to the Iowa Department of Transportation to aid in the construction of highways. Interstate pipeline companies are vested with the power of eminent domain when they receive a permit to construct and operate in Iowa. However, they can use eminent domain only under the conditions set out in the permit. So the first step for a pipeline company is to get a permit, and to get a permit it must petition the IUB.
In the Iowa Code, the legislature gave the IUB the authority to grant permits to build and operate interstate pipelines in Iowa. However, the IUB can grant the permits, along with the power of eminent domain, only after following the procedures and meeting the criteria that the legislature set out in the law.
On January 20, 2015, Dakota Access, LLC, filed a Petition for Hazardous Liquid Pipeline Permit with the IUB asking to build 346 miles of 30-inch diameter crude oil pipeline diagonally through 18 Iowa counties. The work is part of a 1,168 mile project to carry oil from the Bakken area near Stanley, North Dakota, to an oil transfer station, or hub, near Patoka, Illinois. Initially, the proposed pipeline will have a capacity of approximately 450,000 barrels per day, which can be increased to 570,000 barrels per day.
As provided for in the law, the IUB took evidence from Dakota Access, as well as from proponents and opponents of the project. The first issue for the board was to determine whether the project would “promote the public convenience and necessity.” To make this determination, the IUB said it needed to consider and balance the public use and public benefits of the pipeline against the public and private costs and detriments. The parties, both proponents and opponents, presented voluminous and vigorously contested evidence regarding the project’s costs and benefits, including the effects on global warming from oil production, the world oil market, energy independence and security, the safety of rail shipments versus pipelines, the impact of freeing up rail cars for grain shipments, alternative energy sources, the extent of the Bakken reserves, the economic activity produced during construction of the project, the annual property taxes generated, the impact on cultural resources, the safety of the operation, and the plans for spill remediation.
In a more than 150 page Final Decision and Order filed March 10, 2016, the IUB reviewed the evidence and concluded that the public convenience and necessity favored the pipeline. Underlying the IUB’s decision is its conclusion that the evidence showed the demand for oil was such that the Bakken oil would be extracted and transported from the oil fields to refineries one way or another. With that in mind, the IUB considered the evidence and determined that two factors, safety and economic benefits to Iowa, weighed most heavily in favor of granting a permit and the attendant limited power of eminent domain. Addressing safety first, the IUB considered two alternative methods of transporting the oil, pipeline and rail (trucking was given only a passing reference). Citing a U.S. Department of Transportation study that found the spill incident rate for transport of crude oil by rail is three to four times higher than the spill incident rate for pipeline transport on a ton-mile basis, the IUB decided that the pipeline was the safer and, therefore, preferred mode. Next, the board said the economic benefits to Iowa generated by the project were significant; $800 million during construction and $27 million in annual property taxes.
Turning to the costs and detriments, the IUB first found the environmental harm flowing from the pipeline’s construction and operation could be sufficiently mitigated. Dakota Access was in compliance with federal environmental regulations, and the proposed design and construction specifications exceeded federal safety standards for pipelines. Regarding the impacts on private property owners whose land would be used for the project, the board imposed certain conditions that it determined would protect them. Those protections include requirements to bury the pipeline 48 inches deep and to replace the topsoil that is removed when the trenches are dug. Furthermore, the owners will be entitled to compensation for the taking of their land.
With that, the board issued the permit and granted Dakota Access the power of eminent domain to acquire any property it could not purchase from property owners acting voluntarily. Several project opponents who disagreed with the IUB’s decision appealed to the Iowa District Court and asked the court to stay the IUB’s decision while the case was on appeal. The court denied the stay request and so, pending the court’s final ruling, Dakota Access may proceed with the project, including proceeding with using the power of eminent domain. We are now awaiting the court’s review of the IUB’s decision granting the permit.