By Andrea Sinele*
Dakota Access, LLC, a subsidiary of Texas-based Energy Transfer Crude Oil Company, LLC, is currently constructing the 3.7 billion dollar Dakota Access Pipeline (DAPL), which will carry 470,000 barrels of crude oil per day from North Dakota to Illinois.[i] To make room for the pipeline, Dakota Access has forcibly utilized privately owned land.[ii] In response, fifteen Iowa farm owners sued in Iowa state court claiming that the Iowa Utilities Board wrongfully allowed the private pipeline company to seize their land for the pipeline’s private use through the power of eminent domain. [iii]
In accordance with Iowa Code § 6A.1, eminent domain can be used to take property for defined public purposes like the transportation of water, electricity, and natural gas.[iv] Crude oil, however, is not specifically accounted for as a legitimate purpose under the statute.[v] In their suit in state court, the Iowa landowners argue that both Iowa law and the United States Constitution preclude the use of eminent domain to condemn property for a crude oil project.[vi]
Because crude oil is a raw material which has no value unless it is refined and is not a “utility,” the Iowa landowners argue that the Iowa Utilities Board should not permit a private company to condemn a farm for purposes of its transportation.[vii] Additionally, they argue that oil transported by the pipeline will be used to supply citizens of other states and other countries, rather than primarily Iowa citizens.[viii]
The Iowa farmers are concerned about the implications of allowing the state to condemn privately owned agricultural land on behalf of a company which has not demonstrated that it will provide any direct public benefit to Iowa residents.[ix] A March 2015 poll indicated that 74% of Iowa residents disapproved of the state condemning private property for the pipeline.[x]
In addition, Iowa farmers worry about the oil leaking into the soil and the water supply, compromising the area’s drinking water, eroding the soil, and disrupting its fertility.[xi] Iowa Citizens for Community Improvement has called the pipeline “all risk and no reward” because Iowa farmers hold the risk of suffering damage to their land from a pipeline leak without reaping a substantial portion of the oil’s benefits.[xii]
The Science and Environmental Health Network has argued that eminent domain should not be used to privilege a private corporation that may do public harm because the purpose of seizing private property through eminent domain is to serve the public good. It also argues that the fact that Iowa may be left with the clean-up if a pipeline breaks is a violation of the Iowa State Constitution, which reads: “The state shall never assume [. . .] the debts or liabilities of any [. . .] corporation unless incurred in time of war for the benefit of the state.” [xiii]
Furthermore, the organization argues that the pipeline’s infringement on property is particularly salient in Iowa, because agriculture is the basis of the state’s economy.[xiv] Approving the pipeline would be a violation of Iowa’s fiduciary responsibilities to its people because it creates the possibility of great harm to this agricultural interest.
The Iowa court has yet to decide whether the Iowa Utilities Board erred in allowing eminent domain to operate on Iowa’s farmers. This reflects an economic disparity between the large corporation seeking to transport its crude oil and the farmers whose land it has taken to serve its economic interest. Furthermore, it remains unclear what exactly would happen should there be a pipeline leak or break, how residents would know, how they would be compensated, and by whom.
Donald Trump’s election to the presidency adds complexity to the Iowa farmer’s concerns. First, Trump has said he will aim to dismantle the Clean Water Act, which currently gives the federal government jurisdiction over the DAPL.[xv] Additionally, he personally owns stock in Energy Transfer Partners, which also contributed more than $100,000 to his campaign.[xvi] As such, the benefits Energy Transfer will derive from seizing Iowa farmers’ land to implement the pipeline project will also directly benefit President Trump. Thus, it is possible that Iowa farmers will not receive leniency or support in opposing the pipeline from the executive branch going forward.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*Andrea Sinele is a Junior Editor on MJEAL. She can be reached at email@example.com.
[i] Jack Healy, North Dakota Oil Pipeline Battle: Who’s Fighting and Why (Aug. 26, 2016) http://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html?_r=0.
[iii] Bill Hanigan, Iowa Landowners File Brief Against Use of Eminent Domain by Dakota Access Pipeline (Oct. 1, 2016) http://www.davisbrownlaw.com/legal-issues-view.aspx?id=2300.
[iv] John Hult, 4 Ways the Dakota Access Pipeline Could be Stopped (Nov. 5, 2016, 7:57 PM), http://www.usatoday.com/story/news/nation-now/2016/11/05/dakota-access-pipeline-analysis/93362756/.
[vi] Bill Hanigan, Iowa Landowners File Brief Against Use of Eminent Domain by Dakota Access Pipeline (Oct. 1, 2016) http://www.davisbrownlaw.com/legal-issues-view.aspx?id=2300.
[ix] William Petroski, 296 Iowa Landowners Decline Bakkan Pipeline (Feb. 9, 2016, 8 PM) http://www.desmoinesregister.com/story/news/local/government/2016/02/09/296-iowa-landowners-decline-bakken-pipeline/80085982/.
[xi] Rachel Krause, Hundreds Pack Inside Sioux Center Meeting on Proposed Dakota Access Pipeline Project (Dec. 1, 2014, 10:52 PM) http://www.siouxlandmatters.com/news/local-news/hundreds-pack-inside-sioux-center-meeting-on-propo.
[xii] Nathan Malachowski, Branstad Bullying Legislature Over Pipeline (Jan. 17, 2015, 1:24 AM) http://www.desmoinesregister.com/story/opinion/columnists/iowa-view/2015/01/17/branstad-bullying-legislature-pipeline/21910107/.
[xiii] Carolyn Raffensperger, A Legal and Political Analysis of the Proposed Bakken Oil Pipeline in Iowa, Activism Blog (Dec. 5, 2014) http://sehn.org/a-legal-and-political-analysis-of-the-proposed-bakken-oil-pipeline-in-iowa/.
[xv] Justin Worland, What Donald Trump’s Win Means for the Dakota Access Pipeline (Nov. 9, 2016) http://time.com/4565345/dakota-access-pipeline-donald-trump/.