A committee of the Wyoming Legislature has rejected two bills that would have restricted the use of eminent domain to acquire land for carbon capture, wind and solar projects.
Wyoming law now allows private and public utility companies to use eminent domain to condemn and seize land for these alternative energy projects under certain circumstances if a district court judge approves it. In all situations of condemnation, just compensation must be paid for all property taken and the condemner must make a good faith effort to negotiate and purchase the property prior to using eminent domain.
Wyoming’s eminent domain laws give private entities the right to use eminent domain proceedings to condemn land for projects such as wind and solar energy collector systems and transmission lines. These collector systems are typically limited to in-state wind energy use.
The laws originally started as a way for early Wyoming settlers to get access to water but have expanded into a tool that can be used by power companies in the state.
The Joint Agriculture, State and Public Lands Committee rejected by a 9-6 vote Monday a bill that would have prohibited public and private entities from using eminent domain to install pipelines in Wyoming transporting carbon dioxide for the purposes of carbon capture use or storage.
Voting against the bill were Sens. John Kolb, R-Rock Springs, Dan Laursen, R-Powell, and Reps. Lane Allred, R-Afton, Dalton Banks, R-Cowley, Jon Conrad, R-Mountain View, Barry Crago, R-Buffalo, Bob Davis, R-Baggs, John Winter, R-Thermopolis, John Eklund, R-Cheyenne.
Voting for the bill were Sens. Cheri Steinmetz, R-Lingle, Tim French, R-Powell, Larry Hicks, R-Baggs, Bob Ide, R-Casper, and Reps. Bill Allemand, R-Midwest, Allen Slagle, R-Newcastle.
Carbon capture has become a somewhat controversial topic in Wyoming as of late, with some Republicans like the Senate Agriculture Committee Chair Steinmetz loudly criticizing Gov. Mark Gordon’s support and endeavors in this industry.
Enhanced Oil Recovery
Although the majority of the Senate Ag Committee shares Steinmetz's stance, the biggest concern raised by lawmakers and members of the public in opposition to the bill on Monday is that it also would have prohibited the use of eminent domain for enhanced oil recovery.
Pete Obermueller, executive director of Wyoming Petroleum Association, said enhanced oil recovery will serve as a critical mechanism for Wyoming’s oil industry in the future. The Minerals Committee of the Legislature is currently working on a few bills to support oil recovery in Wyoming.
Obermueller called the proposed bill “a significant threat” to enhanced oil recovery in Wyoming as eminent domain is used for this process on rare occasions.
When asked if the bill could be amended to protect oil recovery, he said it couldn’t because Wyoming’s oil and gas industry is already heavily invested in both carbon capture and storage due to sustainable energy demands on the West Coast.
“The systems are intertwined,” he said.
Slagle believes private landowners most often get picked on for eminent domain by energy companies because it’s easier for these companies to pursue their land rather than to try and lease federal land for their projects. And even if it doesn’t get used, Slagle said the implied threat of eminent domain affects land negotiations.
“What this bill does is make you operate fairly with all landowners,” Slagle said.
Obermueller said although this may be true, he stressed that it’s much more beneficial for oil companies to try and work out an agreement with landowners than to seize their land through eminent domain.
“It’s not an either-or- feds or condemnation,” he said.
Ide also voted in support of the bill, describing it as an absolute protection for private property rights against outside theft.
Kolb, who voted against the bill, took a different perspective, pointing out that landowners could hold their property and thereby potentially sink a pipeline project without eminent domain.
Hicks found this to be a facetious argument, saying energy companies have immense flexibility to move a pipeline if rejected by a particular landowner.
“No single landowner can stop a pipeline (when they can) go to an adjacent landowner and realign it,” he said.
The carbon capture bill would have only applied to CO2 pipelines in Wyoming, a point which Allemand questioned. As a result of the Commerce Clause, federal regulations govern interstate pipelines that cross state borders.
Still alive is a bill passed by the Agriculture Committee at its last meeting in September that would prevent private entities from using eminent domain to condemn land for electric generation collector systems that transform energy from their wind turbine or solar panel sources into usable energy.
Seizing Land For Wind And Solar
The committee rejected by a 10-5 vote the bill that would have allowed some level of eminent domain to continue for the installation of electric collector systems for wind and solar energy, which some saw as a compromise to the controversial issue of eminent domain. The bill would have sharply curtailed the practice of condemnation but still allowed it to continue to a small degree.
Current Wyoming law allows wind energy companies to condemn land for their use if a landowner will not cooperate with them, a right sometimes referred to as eminent domain.
The bill would have granted a private property owner the right to occupy and use at least 95% of the land upon which the energy collector system is constructed. It also came with the caveat that a land negotiation must occur between a company and no less than 95% of the owners of the land upon which the energy collector system is constructed if at least three landowners are involved in the potential condemnation action.
Sens. Steinmetz, Kolb, Ide, Hicks, French and Reps. Banks, Allemand, Allred, Winter, Conrad voted against the bill. Sen. Laursen and Reps. Crago, Davis, Eklund, Slagle voted for it.
The topic of eminent domain and collector farms has been ongoing since wind farms started popping up around the state.
Gordon vetoed a bill last year that would have extended a limitation on the circumstances that eminent domain could be used for nine years, expressing concern about length about this moratorium. The bill would have reimposed a previously existing moratorium that existed until 2015.
‘It’s A Balancing Act’
Cheyenne attorney Karen Budd-Falen believed the bill considered Monday would have provided more protection for landowners who may not want to give up their land for wind production.
Jim Magagna, executive vice president of the Wyoming Stock Growers Association, expressed concern that by reducing eminent domain through the bill, it would restrict financial opportunities for some landowners if one landowner didn’t want to participate in a wind project.
“It’s a balancing act, it’s never going to be perfect,” he said.
Attorney Frank Falen said cooperation usually occurs in these negotiation scenarios when they come up in Wyoming, but said there have been instances where landowners and companies each have refused to come to a deal.
He also said there have been issues with defunct or abandoned easements costing landowners tens of thousands of dollars to try to remove.
Ide opposed the bill because he believes it supports “corporate welfare” through the public subsidization of wind farms. Although he acknowledged that some landowners might want wind turbines on their land, he views it as a greater misfortune to forcibly take property to utilize this form of energy production. He sees property rights as inalienable and absolute.
“It’s a taking from somebody,” he said. “They’re the minority where we’re set up as a republic where you’re supposed to protect the minority.”
Falen said wind farms often use these subsidies to help provide financial incentives to entice a landowner to give over use of their land for wind production.
Budd-Phelan said although she appreciated Ide’s position, stopping the government from subsidizing wind and other green energies is not a fight she sees as being won in the Wyoming Legislature.
“I think that issue needs to be taken up with Rep. (Harriet) Hageman or Sen. (John) Barrasso,” she said. “I just think that Wyoming saying, ‘we’re not going to let a subsidized use on somebody’s property’ is not going to mean anything in the grand scheme except make everybody feel better.”
The Fifth Amendment of the U.S. Constitution allows these takings for the purpose of public use but requires just compensation for a landowner whose property has been seized.
“Just compensation should be negotiated by each individual based on the particularities of their particular property,” Hicks said.
Both of these bills could still be resurrected as individually-sponsored legislation for the 2025 legislative session. Steinmetz expressed doubt to Cowboy State Daily that she would bring the collector systems bill back herself.
Leo Wolfson can be reached at leo@cowboystatedaily.com.
