By Carolyn Raffensperger, SEHN Executive Director

I have vivid memories of the noise and environmental damage caused by construction of the Dakota Access pipeline on both the Missouri River at Standing Rock and across the Des Moines River in Iowa. Drilling through rock, clear-cutting forests, scraping off the topsoil all to allow a crude oil pipeline to be pulled under or through the rivers. Seven years ago, as I write this, I was in a tent on the banks of the Missouri River organizing a legal collective at Standing Rock to defend the Water Protectors who tried to prevent that crude oil pipeline from desecrating the rivers just north of the Standing Rock Sioux Tribe’s reservation.

SEHN intervened in the Iowa permit hearings for the Dakota Access pipeline on behalf of future generations. Unfortunately, that permit was granted in Iowa, just as it was in North Dakota. When we lost our case and the pipeline was built, a good friend of mine told me we had to stay strong because there would always be another pipeline. I didn’t believe him. But he was right.

Yes, also as I write this, we are poised to begin hearings in Iowa for another multi-state pipeline. This one, for Summit Carbon Solutions, seeks to build a carbon dioxide (CO2) sewer system across five states. If I learned anything during the Dakota Access fight, I learned that pipelines cross rivers, streams, and wetlands, posing unique hazards to our waterways particularly during pipeline construction and in the event of a rupture or leak.

Two relatively obscure agencies have major roles. Two federal agencies that are largely invisible to the public regulate pipelines and waterways. The Pipeline and Hazardous Materials Safety Administration (PHMSA), which is actually part of the Department of Transportation, regulates pipelines, while the Army Corps of Engineers (the Corps) regulates all river things that are engineered. PHMSA's mission is “to protect people and the environment by advancing the safe transportation of energy and other hazardous materials that are essential to our daily lives.” It does this by overseeing “the safe design, operation, and maintenance of the Nation's nearly 3.4 million miles of oil, gas, and other hazardous materials pipeline facilities for hydrogen, carbon dioxide, and other emerging fuels.” The Corps’ mission is to “[d]eliver vital engineering solutions, in collaboration with our partners, to secure our Nation, energize our economy, and reduce disaster risk.”

When either of these agencies fail in these stated safety missions, we see catastrophes. For instance, PHMSA, which also regulates train transport of hazardous materials, has some culpability in the February 2023 derailment of a train full of toxic chemicals and resulting noxious fire in East Palestine, Ohio.

Both PHMSA and the Corps are facing new safety challenges in the massive number of CO2 pipelines that could be built if plans to develop carbon capture and storage facilities are fulfilled.

The Corps is considering permits for three major carbon dioxide pipelines under something called Nationwide Permit 58 (NWP 58). These pipelines, if permitted, will cover five Midwest states and cross thousands of rivers, streams, and wetlands. The applicants are Summit Carbon Solutions LLC (Summit), Navigator Heartland Greenway LLC (Navigator), and Wolf Carbon Solutions LLC (Wolf). These projects would not only impact thousands of water crossings but also create novel risks to flood control infrastructure, commercial navigation, recreational users, riverbank communities, and the environment. Moreover, the Department of Energy estimates that up to 96,000 miles of new carbon dioxide pipeline may be constructed nationwide by 2050; in other words, these three projects may be the first of many carbon dioxide projects submitted to the Corps.

Federal regulations authorize the Corps to issue Section 404, nationwide permits (NWPs) for categories of activities deemed similar in nature, likely to cause only minimal adverse environmental effects when performed separately, and likely to have only minimal cumulative adverse effect on the environment.

NWP 58 is the nationwide permit used to authorize utility line facilities in waters of the United States, provided the activity does not result in the loss of greater than one half-acre of waters of the United States for each single and complete project. However, under 33 CFR 330.2(i), the Corps provides an exception for linear projects such as that for “projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project.”

Recently, a group of more than 70 NGOs sent a letter to the Corps, urging them not to use NWP 58. We are convinced that NWP 58 not only increases disaster risk, but also causes undue environmental harm, an impact that is largely ignored under a nationwide permit.

Nationwide permits provide a “simplified, expeditious means of project authorization under the various authorities of the Corps of Engineers” by treating each water crossing as a small, separate project, rather than evaluating the pipeline and its cumulative impact on the environment as a whole. Projects that are given an NWP are exempt from the careful scrutiny that should be given to pipelines of the magnitude and potential impacts of the three CO2 pipelines proposed for the Midwest.

In order to adequately protect the public and the waters of the United States, the Corps should not use NWP 58 for these massive CO2 pipelines and instead consider the cumulative and holistic impacts of each pipeline project as a whole under a single Individual Permit requiring an environmental impact analysis and meaningful public involvement.

Further, the Corps should wait until PHMSA has finalized its CO2 pipeline regulations before considering any permits for CO2 pipelines. PHMSA acknowledges that CO2 pipelines are under-regulated and the agency is currently drafting the new regulations for the construction and operation of these pipelines. A draft rule should be out by 2024.

Dakota Access Pipeline Construction above the Des Moines River

CO2 pipelines pose unique hazards. CO2 is an invisible, odorless asphyxiant that is heavier than air and, therefore, sinks to lower elevations, such as river valleys. If a pipeline ruptures, the CO2 can travel large distances from the pipeline at lethal concentrations.

CO2 pipelines are susceptible to unique ruptures known as “ductile fractures,” which can, like a zipper, open up and run down a significant length of the pipe, release immense amounts of CO2 hurl large sections of pipe, expel pipe shrapnel, and generate enormous craters. This kind of rupture poses grave risks to river banks, dams, and levees.

In addition, CO2, in contact with water, forms carbonic acid, which is harmful to aquatic systems.

The case of two of the proposed pipelines. Summit’s proposed pipeline has 3,557 crossings of wetlands, streams and rivers regulated by the Army Corps of Engineers. Like the Dakota Access pipeline, Summit will cross the Missouri River. Navigator’s proposed 1,350-mile pipeline would cross over 1,800 surface waters and wetlands, including major rivers such as the Mississippi, Illinois, Missouri, and Des Moines. The Corps is prepared to authorize each of the thousands of Summit and Navigator crossings as separate projects under the nationwide permitting system instead of treating each pipeline as a whole project.

The prospect of using NWP 58 almost 5,000 times to authorize Summit and Navigator’s projects is an overreach and misuse of the nationwide permitting system and ignores the many and significant impacts of CO2 pipelines that would otherwise trigger an environmental impact analysis and public review under the National Environmental Policy Act (NEPA).

Section 102 of NEPA requires all federal agencies to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment. However, both the Summit and Navigator pipelines are private initiatives. Even though they will receive billions of dollars in federal tax credits, the projects are not considered federally funded actions. Although permits issued by the Corps constitute a federal action, by limiting its jurisdiction to only waters of the United States and considering the pipelines as only a series of minor actions, the Corps ignores the full impacts of the project and circumvents the need to implement the more rigorous requirements of NEPA.

The Corps is the only regulatory agency with authority to implement NEPA regulations for CO2 pipelines. By approving the three Midwest CO2 pipelines under the nationwide permit program, the Corps’ action will set a precedent for tens of thousands of miles of similar pipelines to be constructed nationwide, without the benefit of environmental impact assessments or public involvement.

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Who must protect the rivers, streams and wetlands from CO2 Pipelines?