Owner Of Prairie Seed Farm And A State Senator Say Regulations Needed For CO2 Pipelines

By Paul Hammel

LINCOLN — On a farm near Western that includes a remnant of the tall-grass prairie that once covered eastern Nebraska, Kay Kottas makes her living harvesting and selling native grass and flower seeds and plants.

The “Witt's End Homestead” has been in her family for nearly 160 years, and Kottas sees her Prairie Legacy business as a way to help preserve and restore the area's original landscape.

But in October, she got a shock when a land agent called seeking permission to survey her farm for a planned carbon-dioxide pipeline by another kind of tallgrass, Houston-based Tallgrass Energy.

No state regulations

Kottas, a former instructor in horticulture and native plant identification at the University of Nebraska-Lincoln, got a further shock when shed is covered there were no state regulations or local ordinances governing such a pipeline.

Kay Kottas established a business on her family's farm near Western where she grows and sells native grass and flower seed and plants.(courtesy Witt's End Homestead)

That's unlike neighboring Iowa and South Dakota, where companies must obtain state approval for carbon pipelines, and where several counties have passed ordinances restricting how close the pipelines can be to homes.

In those states, unlike in Nebraska, landowners have staged protests, and lawsuits have been filed. And a fight has erupted over whether private pipeline companies can use eminent domain — a legal process — to obtain right-of-way from farmers who don't want to sell.

In Nebraska, Kottas said, “they could probably build it under my driveway if they wanted” because of the lack of regulations.

That soon might change, though advocates for CO2 pipelines insist that such rules are unnecessary.

Bill would ban pipelines

In the Nebraska Legislature last week, State Sen. Steve Erdman of Bayard introduced a bill to ban carbon-dioxide pipelines and sequestration of carbon in the state.

Opponents of liquid carbon pipelines rallied in November 2022 in downtown Des Moines.(Kathie Obradovich/Iowa Capital Dispatch)

In Saline County, where Kottas lives, a discussion about the need for local ordinances concerning pipelines is planned Tuesday night at a county zoning board meeting.

A handful of Nebraska counties have previously considered local ordinances, with at least one, Holt County, adopting a group of zoning rules including a requirement that a pipeline be set back at least 300 feet from any dwelling.

In Antelope County, the planning commission there used a conditional use permit to impose some requirements for the proposed Summit Carbon Solutions pipeline in that area. The zoning board recommended approval contingent on 13 conditions, including training and equipment for local responders, and a setback of 350 feet from existing dwellings.

But at the state level, there's nothing.

The Nebraska Public Service Commission, which dealt with the controversial route of the Keystone XL oil pipeline, has no similar power over pipelines that carry CO2. And a state legislative proposal in 2022 to govern reclamation of carbon pipelines, once they are shut down, went nowhere.

State Sen. Steve Erdman of Bayard (Courtesy of the Unicameral Information Office).

Erdman said state lawmakers didn't realize the dangers presented by CO2 pipelines when they passed a law in 2021 that allows underground storage of carbon (with approval of the Nebraska Oil and Gas Commission).

He cited a carbon pipeline leak in Satartia, Mississippi, that sent 45 people to the hospital suffering from lack of oxygen and disorientation. First responders described it as looking like a “zombie apocalypse,”according to NPR, with some people foaming at the mouth.

The leak prompted a $2.8 million penalty for the pipeline company, which assured federal regulators that it would improve communications with local first responders.

“It's time to have a discussion (here),” Erdman said.

An official with Tallgrass Energy and a representative of Nebraska ethanol industry say there's no need for state regulations.

Steven Davidson, a Tallgrass vice president, said the federal government already governs construction and operation of liquid carbon pipelines through the Pipeline and Hazardous Materials Safety Administration (PHMSA).

“We take safety extremely seriously and have operated Trailblazer in the state for over a decade without incident,” Davidson said.

“People seem to have the mistaken impression that these are unregulated, and they are just not,” he added.

Dawn Caldwell of Renewable Fuels Nebraska, a coalition of the state's 24 ethanol plants, said PHMSA is in the process of updating its rules concerning carbon-dioxide pipelines.

“So why do we need additional state regulation?” Caldwell asked.

Both pipeline proponents emphasize that carbon capture projects linked to planned pipelines are critical for the future of the ethanol industry, which employs more than 6,000 Nebraskans and contributes over $4 billion to the state's economy. Ethanol also boosts the price farmers get for corn and provides a byproduct that is a prized livestock feed.

Helps agriculture and the county

“It helps agriculture and helps the county,” said Marv Fritz, the zoning administrator in Holt County, which may be the only Nebraska county to pass rules on carbon pipelines. He added that it would bring additional property tax revenue to his rural county.

The goal of capturing CO2 produced by ethanol plants is to reduce the fuel's carbon score and make it a more attractive, “greener” fuel.

A map of proposed carbon pipelines in theMidwest still includes the Navigator project(in blue), which was abandoned in October.(Courtesy of the Iowa Renewable Fuels Association)

Caldwell added that lower-carbon ethanol might also play a key role, in the future, by providing “sustainable aviation fuel,” a cleaner alternative for the airline industry.

Nebraska has two major pipeline projects pending. A third, the Navigator CO2, was shelved in October.

One pending project, the Trailblazer Conversion Project, would convert 392 miles of the existing Trailblazer natural gas pipeline that crosses Nebraska from west to east to carry CO2 captured from ethanol plants. The carbon, in liquid form and under high pressure, would be transported through a pipe to Wyoming and be injected underground.

As part of the project, Tallgrass plans to build a series of new laterals off the main pipeline to Nebraska ethanol plants, which is why a pipeline in planned through southern Saline County, where Kottas lives.

The other CO2 pipeline project, from Summit Carbon Solutions, involves building 2,000 miles of pipeline across Iowa, Minnesota, Nebraska, North Dakota and South Dakota to a sequester site in North Dakota.

Infrastructure law provides funding

Interest in carbon pipelines got a major financial boost when President Joe Biden, via the Bipartisan Infrastructure Law in 2021, set aside $12 billion for carbon management projects.

Bridgeport project

One smaller carbon pipeline project is moving forward.

In Bridgeport, a test well for carbon sequestration has been dug, though federal approval is pending, according to Dawn Caldwell of Renewable Fuels Nebraska, an ethanol trade group.

Carbon from a Bridgeport ethanol plant would be piped to the sequester site a few miles away, Caldwell said, in a project that didn't generate controversy.

The Summit project has sparked the most controversy in other states, and both South Dakota and North Dakota have rejected proposed routes in those states. However, Summit officials have said they plan to reapply.

Last month, a federal judge blocked two Iowa counties from enforcing ordinances they passed to govern carbon pipelines, though that ruling is being appealed.

Brian Jorde, an Omaha attorney who has represented landowners opposed to carbon pipelines, said it was an interesting ruling because PHMSA has stated that siting, routing and setbacks of such pipelines should be up to local counties.

He added that another big issue is whether pipeline companies can use eminent domain to obtain right of way from landowners who don't want apipeline across their property. Jorde argues that they can't.

BOLD official surprised by lack of action

At this point, no eminent domain cases have been filed in Nebraska — a step that would most assuredly spark a lawsuit. Construction work on the Tallgrass project is at least a year away, with work on the Summit pipeline probably two or three years down the road.

Jane Kleeb, founder of BOLD Nebraska, an environmental group that fought the Keystone XL pipeline, said she's been surprised that carbon pipe lines haven't generated more attention in Nebraska, given that the state's opposition to the XL project got national attention.

“I feel like I'm in a twilight zone,” Kleeb said, of the dearth of activity here.

She said regulations that provide setbacks from homes, training for emergency responders and decommissioning pipelines are sorely needed.

“If a pipeline exploded and you're close by, you're dying because it takes away your oxygen away,” Kleeb said.

Public information meetings needed Kottas, from her farm near Western, has similar concerns because her home sits in a low spot, where a cloud of carbon dioxide might settle if there was a pipeline leak.

In her case, a Tallgrass representative has told her the pipeline now won't cross her farm. But Kottas said she's concerned about her neighbors and the lack of information being disseminated about the carbon pipeline — information that she only got after calling the company.

While Tallgrass officials have said they have held open houses on their projects elsewhere, Kottas said there's been no public information meetings in her county to let people know what they're dealing with before they sign away their right of way.

She said there also should be some state or local regulations so the pipeline is routed some distance from homes.

While her farm is no longer on the pipeline route, she said she's learned that it's now proposed for a neighbor's land, just across the road.

“It's honestly worse,” Kottas said, because she still feels a risk to her safety, and she won't get a right-of-way payment from the pipeline company.

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