Illinois’s carbon dioxide pipeline and sequestration law passed May 26 is being described as among the nation’s strictest. It is only the second carbon dioxide pipeline moratorium in the U.S., after California, and it creates a significant permitting process once the moratorium is lifted.
But landowners and advocates are still unhappy with several key provisions left out of the law, and said they are exploring options to end the use of eminent domain for carbon pipelines and protect landowners from carbon being sequestered in their underground pore space against their will.
“There’s a lot of good in there, but it definitely is a work in progress in terms of guard rails,” said Jennifer Cassel, a senior attorney for Earthjustice who worked with the Illinois Clean Jobs Coalition that endorsed the new law after members previously worked with lawmakers on a stronger bill. “The federal uncertainty was part of the push, and there’s so much of a gold rush already happening,” with applications for 22 carbon dioxide injection wells pending in the state, plus various pipeline proposals.
SB 1289, or the SAFE Act, allows a company seeking to sequester carbon to move forward if the owners of 75% of the affected land agree to the plan, which provides them compensation. That means, critics note, that owners of 25% of the land cannot stop a project, even if they are opposed. Owners of small several-acre parcels would have few rights compared to large landowners, noted Pam Richart, co-founder of the Coalition to Stop CO2 Pipelines.
The coalition had worked with lawmakers on a much more stringent bill, which would have limited the use of eminent domain to acquire land for pipelines and sequestration. It would also have banned the injection of carbon dioxide through the Mahomet Aquifer. The Farm Bureau opposed the SAFE Act in part because it didn’t address eminent domain, though the new law includes some protections regarding compensation for land damage.
“Landowners are profoundly disappointed that the act was approved without eminent domain [limits],” Richart said. “The landowner protections weren’t as strong as we hoped.”
The coalition’s preferred bill would not have allowed forced integration of pore space against landowners’ will. Richart said they expected some compromise on that front, but not to the extent enshrined in the SAFE Act.
“That’s not how this is supposed to work,” she said. “If a project is in the public interest, you wouldn’t expect landowners of 25% of the land to hold out.”
The SAFE Act stands for Safety and Aid for the Environment in Carbon Capture and Sequestration. It still awaits signature by Gov. J.B. Pritzker, who has indicated he will sign it, and bills become law after 60 days in Illinois if the governor takes no action.
Future options
Richart said advocates don’t plan to “reopen the whole process” around legislation, but hope to work with legislators on a trailer bill that could increase protections for landowners.
“A lot of legislators expressed serious concern about the aquifer, I wouldn’t be surprised if those issues and potentially others come back up in some form,” Cassel said.
The new law places a moratorium on new carbon dioxide pipelines for two years or until the federal Pipeline and Hazardous Materials Safety Administration issues regulations for carbon dioxide pipelines, which are in the works. The previous bill advocates backed included a moratorium of four years or until the federal regulations are adopted. Cassel said labor unions felt that moratorium was too long.
Richart said the Illinois law is only a “quasi-moratorium” since companies can begin the application process for new pipelines even before the PHMSA regulations come out.
Meanwhile the SAFE Act does not include setbacks from properties for carbon dioxide pipelines. If the PHMSA regulations do not include setbacks, which is likely, Illinois advocates could push for setbacks under the permitting process created by the SAFE Act, since it allows for additional safety measures to be developed provided they are not in conflict with federal regulations.
Advocates say county governments, which have in multiple cases refused to approve sequestration sites connected to pipelines, could work together to push for setback policy.
Benefits of new law
Advocates are grateful for a robust public engagement process created by the new law.
“Before there was no requirement to notify anybody about a carbon dioxide pipeline except when the Illinois Commerce Commission was ready to begin its application process,” said Richart, citing two recent controversial proposals. “Wolf never notified anybody, One Earth never notified anybody. The commerce commission just said, ‘You better come to this hearing, it might be subject to eminent domain.’”
The Illinois Commerce Commission decides whether a given proposal is in the public interest and able to invoke eminent domain, but previously the commission had no authority over carbon sequestration sites and its consideration of pipelines was largely limited to property values.
The SAFE Act creates a permitting process that requires companies hold two public meetings in each affected county and post materials about the proposal and public comment process. Under the new law, the Illinois Commerce Commission can consider safety and other information in deciding whether to grant eminent domain powers.
Under the new law, companies must also pay into an emergency response fund and create an emergency plan, which entails modeling about possible risks and the expected distribution of carbon dioxide plumes in case of a leak.
“They have to do computational fluid dynamics modeling, and they have to make it public, at a time when there is a definite movement by pipeline developers to make their modeling proprietary, confidential,” said Richart. “So this is huge.”
Companies doing carbon injection and sequestration must also put up money for future environmental mitigation, so future costs don’t fall on the state. The law does not allow self-bonding, a controversial financing mechanism used by coal companies in the past that ultimately forced the state to foot the bill for mine cleanup.
The SAFE Act also enshrines safeguards to make sure that carbon capture and sequestration doesn’t ultimately lead to an increase in air pollution by allowing coal plants to keep operating, and it prohibits the use of carbon dioxide for enhanced oil recovery.
These protections gained approval from environmental justice organizations like the Little Village Environmental Justice Organization, a member of the Illinois Clean Jobs Coalition.
The Illinois Corn Growers Association and Illinois Renewable Fuels Association also backed the new law. Their members stand to benefit from the expansion of the ethanol industry, which depends on carbon sequestration to reduce its greenhouse gas emissions. While carbon capture and sequestration was launched in Illinois in relation to coal plants, recent pipeline proposals have focused primarily on connecting ethanol plants to sequestration sites.
State Rep. Ann Williams, a sponsor of the law, said in a statement that:
“Illinois is a national leader on climate and energy policy, and SB 1289 ensures that if companies are going to use CCS as a climate mitigation strategy, they will need to meet some of the strongest standards in the nation. The CCS protections bill ensures critical guardrails are in place to protect Illinois taxpayers, landowners and our environment.”