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Illinois’ carbon dioxide pipeline and storage law, passed on May 26, is considered one of the strictest in the country. It is only the second moratorium on carbon dioxide pipelines in the U.S. after California and will result in an extensive permitting process once the moratorium is lifted.

But landowners and stakeholders remain unhappy with several key provisions missing from the bill. They said they are exploring options to end the application of expropriation law to carbon pipelines and protect landowners from having carbon sequestered in their underground pore spaces against their will.

“There’s a lot of good in there, but it’s definitely still work on the guardrails,” said Jennifer Cassel, a senior staff attorney at Earthjustice who worked with the Illinois Clean Jobs Coalition, which supported the new law after members previously worked with lawmakers on a stricter bill. “The uncertainty at the federal level was part of the push, and there’s already a real gold rush going on,” with applications pending in the state for 22 carbon dioxide injection wells as well as various pipeline proposals.

SB 1289, or the SAFE Act, allows a company that wants to sequester carbon to proceed if the owners of 75 percent of the affected land agree to the plan and are entitled to compensation. That means, critics say, that the owners of 25 percent of the land cannot stop a project even if they oppose it. Owners of small, multi-acre properties have few rights compared to large landowners, notes Pam Richart, co-founder of the Coalition to Stop CO2 Pipelines.

The coalition had worked with lawmakers on a much stricter bill that would have restricted the use of the right of expropriation to take 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 did not address the right of expropriation, although the new law includes some protections regarding compensation for land damage.

“Landowners are deeply disappointed that the law was passed without expropriation powers (restrictions),” Richart said. “The protection of landowners was not as strong as we had hoped.”

The Coalition’s preferred bill would not have allowed for forced integration of pore space against the will of landowners. Richart said they had expected some compromise in this regard, but not to the extent envisaged in the SAFE Act.

“That’s not how it should work,” she said. “If a project is in the public interest, you wouldn’t expect the owners of 25 percent of the land to stick it out.”

The SAFE Act stands for Safety and Aid for the Environment in Carbon Capture and Sequestration. It is awaiting the signature of Governor JB Pritzker, who has said he will sign it. If the governor does not take action, the bills will become law in Illinois after 60 days.

Future options

Richart said advocates do not plan to reopen the entire process surrounding the legislation, but hope to work with lawmakers on a bill that could increase protections for landowners.

“Many legislators have expressed serious concerns about the aquifer. I would not be surprised if these and possibly other issues resurface in some form,” Cassel said.

The new bill would impose a moratorium on new carbon dioxide pipelines for two years, or until the U.S. Pipeline and Hazardous Materials Safety Administration issues regulations for carbon dioxide pipelines, which are currently in the works. The previous bill that advocates supported called for a moratorium of four years, or until federal regulations are passed. Cassel said unions thought the moratorium was too long.

Richart said the Illinois law is merely a “quasi-moratorium” because companies can begin the application process for new pipelines before the PHMSA regulations are issued.

The SAFE Act does not require setbacks to land for carbon dioxide pipelines. If PHMSA regulations do not require setbacks, which is likely, advocates in Illinois could push for setbacks under the permitting process created by the SAFE Act, which allows for the development of additional safety measures as long as they do not conflict with federal regulations.

Proponents say county governments, which have repeatedly refused to permit pipeline-connected storage sites, could work together to enforce a distance requirement.

Advantages of the new law

Supporters are grateful for the robust public participation process created by the new law.

“There used to be no requirement to notify anyone about a carbon dioxide pipeline unless the Illinois Commerce Commission was ready to begin its application process,” Richart said, pointing to two recent, controversial proposals. “Wolf never notified anyone, One Earth never notified anyone. The Commerce Commission just said, ‘You better come to that hearing, it could be subject to expropriation.'”

The Illinois Commerce Commission decides whether a particular proposal is in the public interest and whether a right of expropriation can be invoked. But until now, the commission has had no authority to decide on carbon sequestration sites, and its considerations of pipelines have been largely limited to land values.

The SAFE Act creates a permitting process that requires companies to hold two public meetings in each affected county and post materials about the proposal and the public comment process. Under the new law, the Illinois Commerce Commission can consider safety and other information in its decision whether to grant expropriation authority.

Under the new law, companies must also pay into an emergency fund and draw up an emergency plan that includes model calculations of possible risks and the expected spread of carbon dioxide clouds in the event of a leak.

“They have to build numerical flow models and publish them at a time when there is clearly an effort by pipeline developers to make their models proprietary and confidential,” Richart said. “So this is a huge deal.”

Companies that inject and store carbon will also have to raise money for future environmental protection measures so that future costs are not passed on to the state. The law does not allow voluntary commitments, a controversial financing mechanism that has been used by coal companies in the past and ultimately forced the state to cover the costs of mine cleanup.

The SAFE Act also includes safeguards to ensure that carbon capture and storage does not increase air pollution by allowing coal-fired power plants to continue operating. It also prohibits the use of carbon dioxide to enhance oil recovery.

These protections have been endorsed by environmental organizations such as the Little Village Environmental Justice Organization, a member of the Illinois Clean Jobs Coalition.

The Illinois Corn Growers Association and the Illinois Renewable Fuels Association also supported the new law. Their members will benefit from the expansion of the ethanol industry, which relies on carbon sequestration to reduce its greenhouse gas emissions. While carbon capture and sequestration was introduced in Illinois in connection with coal-fired power plants, recent pipeline proposals have focused primarily on connecting ethanol plants to sequestration sites.

State Rep. Ann Williams, one of the law’s sponsors, said in a statement:

“Illinois is a national leader in climate and energy policy, and SB 1289 ensures that companies seeking to use CCS as a climate mitigation strategy must meet some of the most stringent standards in the country. The CCS Protection Act ensures that important guardrails are in place to protect Illinois taxpayers, landowners and our environment.”

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