David Ganje: In consideration of pipelines

Underground (and sometimes aboveground) pipelines are a necessary part of the fabric of a developed nation.

Yes, they are necessary. Yes, they are everywhere. When dealing with land sales a goodly number of buyers, sellers and their advisers give little head to the passing reference in the paperwork for “rights of way and easements of record.”

I invite the reader to review public records of any county; look for pipeline easements - the reader will be taken aback. Oftentimes when hiking whether I know it or not I am crossing over a pipeline. The question then is how does the nation manage this necessity and the issue of pipeline hazards?

Let us consider some questions. We will use a CO2 pipeline for the discussion. Carbon dioxide (CO2) is a heat-trapping gas, or greenhouse gas, that may come from the extraction and burning of fossil fuels. Could it be reused for other things? Yes.

First we should discuss a few relevant points. One is, what is a commodity? The other is the broad issue on the use of eminent domain by a for-profit business to take real property from private property owners for a pipeline. On the street this legal process, or taking, is called condemnation.

What is a commodity?

A commodity is a good or thing that is interchangeable. A commodity is an economic good each of whose parts is indistinguishable from any other part. It is usually a standardized good which is traded in bulk and whose units are interchangeable.

Elected officials seem to struggle with whether CO2 as a transported gas is a commodity. Nothing to struggle about: Something that is itself interchangeable as a mass and transported from one place to another for sale or even for disposal (if someone is paying for the disposal of the gas as a waste) is a commodity.

Let us look at pipelines. Approximately 5,000 miles of pipeline carry CO2 in the United States, primarily linking natural CO2 sources to aging oil fields where the CO2 is used for enhanced oil recovery. According to the federal government a much more expansive CO2 pipeline network could be needed for carbon capture and storage systems to meet national goals for greenhouse gas reduction.

What are the hazards? An industry group which supports CO2 pipelines has written on the issue stating, “Multiple analyses have found that to achieve net-zero emissions, a substantial buildout of CO2 pipeline infrastructure will be needed to transport large quantities of CO2 from industrial facilities, power plants and direct air capture facilities to points of utilization and/or permanent storage. CO2 pipelines have operated in the United States for nearly 50 years and have a strong safety record. However, in anticipation of an expanding CO2 pipeline network, we must make sure the regulatory framework enables efficient permitting while also ensuring CO2 pipelines are designed, constructed, managed and maintained at standards delivering the highest levels of reliability and safety.”

Now my questions:

1. Have the risks to human health and livestock, including the potential for loss of life from ruptures of a pipeline which could spread carbon-related gases for more than a mile from the point of rupture been adequately studied? CO2 pipelines transport at pressures above 1,900 psi. Natural gas is transported at pressures between 800-1,160 psi.
2. Have the risks and potential loss of reduced crop yields been calculated and restrictions for the use of productive farmland which may occur due to the existence of the pipeline been adequately studied? (https://www.cals.iastate.edu/news/releases/pipeline-study-shows-soil-compaction-and-crop-yield-impacts-construction-right-way)
3. Has the absence of competent federal regulation and oversight, as suggested by the federal agency with jurisdiction - the Pipeline and Hazardous Materials Safety Administration (PHMSA) concerning the design, construction, operation, and maintenance of the carbon pipeline been addressed? Critics say that the PHMSA has missed congressional deadlines on safety rules because of technical issues, industry pushback and limited staffing, with some rules finished more than a decade behind schedule.
4. Have reduced property values for land acquired for construction and operation of the pipeline as well as reduced values for properties that are located up to a mile or more from the carbon pipeline which are at risk from a pipeline rupture been adequately studied?
5. What is the current status or readiness and training of local first responders to correctly assist parties or victims in the event of a rupture been addressed?
6. Are current safety radius distances around planned pipelines adequate? One former federal official who is now a pipeline consultant stated in an article that the federal regulatory body, the PHMSA, chose to use an industry-commissioned formula in order to avoid opposition from pipeline companies. Pipeline regulators, he said, have long relied on industry resources because of underfunding.

David Ganje is an attorney who practices natural resources, environmental and commercial law in South Dakota.