Pipelines have benefits, but also concerns

Underground (and sometimes above-ground) pipelines are a necessary part of the fabric of a developed nation. Yes, they are necessary. Yes, they are everywhere. When dealing with land sales a goodly number of buyers, sellers and their advisers give little heed to the passing reference in the paperwork for “rights of way and easements of record.” I invite the reader to review public records of any South Dakota county; look for pipeline easements — the reader will be taken aback. Oftentimes when hiking whether I know it or not I am crossing over a pipeline. The question then is how does the nation manage this necessity and the issue of pipeline hazards? Let us consider some questions. We will use a CO₂ pipeline for the discussion. Carbon dioxide (CO₂) is a heat-trapping gas, or greenhouse gas, that may come from the extraction and burning of fossil fuels. Could it be reused for other things? Yes.

First, we should discuss a few relevant points. One is, what is a commodity? The other consideration is the broad issue on the use of eminent domain, or taking, by a for-profit business to take real property from private property owners for the development of a pipeline. In common terms the legal process, or taking, is called condemnation. I wrote some thoughts a while back on eminent domain under the circumstances of a for-profit party acting as the taking party. Please see this piece on compensation fairness: https://rapidcityjournal.com/news/opinion/yours-what-is-a-fair-price-for-pipeline-easements/article_2bec9c4a-310b-5054-83d0-46c0f9a5eebc.html

What is a commodity? We start with the definition of a commodity. A commodity is a good or thing that is interchangeable. A commodity is an economic good each of whose parts is indistinguishable from any other part. It is usually a standardized good which is traded in bulk and whose units are interchangeable. Elected officials seem to struggle with whether CO₂ as a transported gas is a commodity. A gas has matter and is a mass. Nothing to struggle about, something that is itself interchangeable as a mass and transported from one place to another for sale or even for disposal (if someone is paying for the disposal of the gas as a waste) is a commodity.

Let us look at pipelines. Approximately 5,000 miles of pipeline carry CO₂ in the United States, primarily linking natural CO₂ sources to aging oil fields where the CO2 is used for enhanced oil recovery. According to the federal government a much more expansive CO₂ pipeline network could be needed for carbon capture and storage systems to meet national goals for greenhouse gas reduction.

What are the hazards? An industry group which supports CO₂ pipelines has written on the issue stating, “Multiple analyses have found that to achieve net-zero emissions, a substantial buildout of CO₂ pipeline infrastructure will be needed to transport large quantities of CO₂ from industrial facilities, power plants and direct air capture facilities to points of utilization and/or permanent storage. CO₂ pipelines have operated in the United States for nearly 50 years and have a strong safety record. However, in anticipation of an expanding CO₂ pipeline network, we must make sure the regulatory framework enables efficient permitting while also ensuring CO₂ pipelines are designed, constructed, managed and maintained at standards delivering the highest levels of reliability and safety.”

Now my questions: 1. Have the risks to human health and livestock, including the potential for loss of life from ruptures of a pipeline which could spread carbon-related gases from the point of rupture been adequately studied? CO₂ pipelines transport the gas at higher pressures than natural gas. Natural gas is transported at pressures between 800-1,160 psi. CO₂ gas is odorless, colorless, does not burn and is heavier than air.
2. Have the risks and potential loss of reduced crop yields been calculated, as well as any restrictions for the use of productive farmland which may occur, due to a proposed pipeline, been adequately studied? (https://www.cals.iastate.edu/news/releases/pipeline-study-shows-soil-compaction-and-crop-yield-impacts-construction-right-way)
3. Has the absence of competent federal regulation and oversight, as suggested by the federal agency with jurisdiction – the Pipeline and Hazardous Materials Safety Administration (PHMSA) – concerning the design, construction, operation, and maintenance of the carbon pipeline been addressed? Critics say that the PHMSA has missed congressional deadlines on safety rules because of technical issues, industry pushback and limited staffing, with some rules finished more than a decade behind schedule.
4. Have potential reduced property values for land acquired for construction and operation of the pipeline as well as reduced values for properties that are located up to a mile or more from the carbon pipeline which are at risk from a pipeline rupture been adequately studied?
5. When a pipeline is proposed what is the status, readiness and training of local first responders to correctly assist parties or victims in the event of a rupture?
6. Are current safety radius distances around planned pipelines adequate? One former federal official who is now a pipeline consultant stated in an article that the federal regulatory body, the PHMSA, chose to use an industry-commissioned formula in order to avoid opposition from pipeline companies. Pipeline regulators, he said, have long relied on industry resources because of underfunding.

To view relevant material, articles, and blogs of Mr. Ganje:

https://lexenergy.net/blog/

The graveyard for consumer, agricultural and industrial waste

Local governments in South Dakota manage several large regional landfills. When I was a kid a landfill was known as a dump. We kids had no idea how significant a dump would become in the stewardship of the environment and in consideration of the natural environment, human health and safety. We thought landfills around Brown County were an unperfumed place where we could hunt rats and find treasures. Temporibus mutata. The operation of a modern landfill, also known as a solid waste facility, involves environmental risks such as possible damage caused by landfill-based liquids leaking into ground water causing contamination of ground water.
Modern landfills are often constructed with liners and other collection systems designed to prevent contamination of the ground, ground water and the air. Despite this protection, in 2003 the U.S. Geological Survey (citing the EPA) opined that “all landfills eventually will leak into the environment.”
A landfill can be a large pit or sectioned-off area of surface land. One of the goals of a managed landfill is to protect the surrounding watershed and ground water. The liners or membranes are used to attempt to stop liquids from passing outside of the landfill. 
The landfill liner is usually made of clay, which is bonded to or layered between some type of textile, according to a fact sheet from the U.S. Environmental Protection Agency. Lining is the first step, because water percolation through a landfill is inevitable.
Except in Indian Country and on certain federal lands, state government is responsible for regulating storage, treatment, and disposal of solid waste in South Dakota. The waste management world created a separate operating system from hazardous wastes which have their own rules. For solid waste systems the state provides technical assistance, issues solid waste permits (licenses to operate), conducts solid waste facility inspections and investigates solid waste disposal complaints.
Exotic wastes like ‘cannabis waste disposal’ and such mundane items as discarded tires are both regulated solid wastes in South Dakota. The state has administrative rules governing the collection, transportation, storage, processing and disposal of waste. The permit holder is however the party obligated to actually manage and control the facility and must prepare periodic reports showing the safety and efficacy of the landfill.
In South Dakota ground water monitoring systems should be located by the permit holder near a landfill. These are designed to determine ground water quality and to detect any migration of leachate constituents from a landfill. Leachate is liquid percolating from a landfill containing soluble substances or substances in solution. Leachate may include several different chemical constituents.
For safe drinking water standards the state has adopted ‘maximum contaminant level goals’ established by the EPA for chemicals that may be found in water. The EPA created a comprehensive list of chemicals. The EPA tells us that its list reflects the maximum level of a contaminant in drinking water below which there is no known or expected risk to health.
A landfill permit holder is to submit an annual report to the state summarizing and interpreting ground water monitoring data. The ground water data is to be statistically analyzed. Let us look at the 2022 Brown County report concerning ground water at its permitted landfill. I will provide some questions.
In the report the amount of manganese tested was higher than the limit suggested by the EPA. Was any remedial action recommended because of the test? The state has previously published a comprehensive discussion of manganese at the following link: https://danr.sd.gov/OfficeOfWater/DrinkingWater/manganese.aspx
And for a number of chemical tests, the Brown County report generalized the results instead of providing specific information on quantities. Why was it done this way? References to the EPA’s maximum contaminant levels are a preferred method. Several chemicals were listed in tested amounts higher than what the report called a ‘laboratory reporting limit’. ‘Laboratory reporting limits’ are values set in a particular report which may be based on project-specific reporting limits, regulatory action levels, etc. To confuse matters, laboratory reporting limits are not the EPA maximums discussed above. I did not see an explanation of the methodology used to establish laboratory reporting limits in the report. Additionally, both glyphosate and atrazine – chemicals found in common herbicides, are included in the EPA list discussed above and are found in the state’s groundwater chemical lists with designated maximum concentration limits. Why did the county not test for these chemicals?
Brown County could suggest that my concerns and questions are ill-founded. The county might argue I do not understand their testing protocols or reporting system. Indeed, that may be the case because in the conclusion to the report the county stated that there are no indications of a problematic buildup of fluid and/or leachate in the landfill.

To view relevant material, articles, and blogs of Mr. Ganje:

https://lexenergy.net/blog/

Can the law defeat inflation?

For those readers in a deep state of prolonged unconsciousness for the last couple of years, welcome to the world of inflation. Inflation – the devils economic playground. Inflation reduces the purchasing power of the dollar. Inflation manifests as in increase in the cost of goods and services. To put inflation in a correct theological context: a purse with useless money gives the devil happiness. Inflation practices no prejudices, political or otherwise. It affects anarchists and post-modern Marxists alike.
Let us look at two ways created by law to fight inflation. The first is based on federal law. Congress established the Federal Reserve Banking System and its Federal Reserve Board to oversee the nation’s banking system. Federal Reserve board members manage “the” monetary policy of the United States. The system uses its legal power to manage the U S money supply through lending policies to control, among other things, inflation. The board is fond of increasing interest lending rates in times of inflation. Modern economists, an unenlightened cabal of professionals, think inflation is ok and should continue at low rates. To fight inflation by increasing the interest rate on money lent by the fed is like running through a supermarket naked. Running naked creates a present commotion, but you still must pay for the groceries before you leave. The U S was once on a gold standard money supply policy. The policy was eliminated in favor of a floating dollar valuation not linked to a set price for gold under President Nixon. Since the abandonment of the gold standard the U S has no legal anchor which controls the baseline value for the dollar. A gold standard is a monetary system in which the country’s paper money has a value directly linked to the price of gold. Today the primary federal reserve monetary policy tools are interest rate setting and mandatory bank reserve requirements. Current U S legal monetary tools are a weak combatant against inflation.
Concerning the second method for fighting inflation we look to a reactive way in which individuals and businesses should engage in the legal battle. This approach is a limited option and only works prospectively. In the world of contracts and long-term agreements, individuals and businesses can protect themselves against future inflation with proper contract language. Cost-of-living clauses included in an agreement or contract are a legal mechanism for dealing with the eternal problem of inflation and government’s mismanagement of the U S money supply system.
Long-term projects as well as continuing service contracts are at the mercy of inflation. This past week, the CPI released data that prices grew 9.1 percent over the last 12 months from June 2021 through 2022. A party is naturally dissuaded from starting a new project when the party cannot reasonably predict its true end costs or its potential profits. While the most well-known approach is the cost-of-living adjustment clause (COLA), there are other approaches.
Some standard form contracts include payout provisions based on CPI costs. In general, the CPI covers a national market for a list of goods. This list of products may fluctuate in price with the season. In contrast, some materials under a particular or specialty contract have prices that move against these general fluctuations. By modifying the categories of the CPI or limiting the CPI index to the region where the contract is located, the clause will better reflect actual changing regional costs. Inflation clauses also often call for reevaluating a pegged indexed price on a yearly basis. Instead, one could track the prices on a semiannual basis. More frequent evaluations would more accurately reflect inflation.
Because the government’s monetary policymaking is intentionally insulated from substantive public input and common sense, the individual’s and a business’ efforts should pay more attention to inflation clauses within an agreement. This is an individual form of monetary policy.

To view relevant material, articles, and blogs of Mr. Ganje:

https://lexenergy.net/blog/

Toto, it aint a laissez faire environment any more

The federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as “Superfund,” was established to address abandoned hazardous waste sites.  
Among other things, and in addition to its Superfund notoriety, CERCLA created a liability scheme to determine who could be held at law accountable for the release of hazardous substances.  The astute reader should not just think of well publicized Superfund sites as the only goal of the law.  The overall purpose of  CERCLA is that of a pollution enforcement statute.
Under CERCLA, individuals, corporations, and governments (yes governments) may be liable for the cost of fixing abandoned hazardous waste sites. Liability is based on property ownership, or by virtue of activity of a party that had an effect on a particular site. For property sites from which there is a chemical release or threatened release of hazardous substances, the categories of “potentially responsible parties” include:
• Current owner or operator of the property
• Past owner or operator of the property at the time of disposal of hazardous substances
• Current or past agent who arranged for hazardous substances to be disposed of or transported to the site for disposal
• Current or past agent who transported hazardous substances to the site
Consider however that the agricultural production world, mostly farming, holds legal exemptions from certain federal environmental laws.  This is because of the agricultural sector’s political clout as well as the acknowledged necessity of food production in the U. S.   Agriculture is exempt from compliance with  federal statutes such as the Clean Water Act, Clean Air Act, and CERCLA.  While states have some authority to step in and regulate these areas of environmental oversight, states do not, leaving a large sector of the economy excluded from much of the liability inquiry discussed in this piece.
An example of an exception granted to agricultural is the act of waste sludge applied to farm fields.  Using sludge (in bureaucratic parlance “biosolids”) on cropland is a nutrient rich use of so-called natural fertilizers.   If the sludge is applied following certain EPA rules the activity is allowed under CERCLA.  A problem in circular logic remains unresolved from this practice.  Past pollution caused by sludge is a legal issue in no-man’s-land because CERCLA is the principal federal code for holding polluters liable for environmental contamination.  And questions remain regarding the sludge-spreading effects on groundwater and indirectly on livestock heath and production.
What is CERCLA liability?  Under CERLA, liability may be applied retroactively against past or present owners that release or threaten the release of hazardous substances.  This includes the owners and former owners of buildings, equipment and land. Courts have found liability in situations where there was little or no activity on the part of the current owner/operator concerning a hazardous substance.  And the recent acquisition of a property could result in the assumption of liability for the previous hazardous contamination of the property whether or not the innocent buyer looked into the situation.
Common sense applies to property ownership in the new world of environmental stewardship.  Modern property management how-to manuals include a detailed litany of things recommended in this new world order.  But let us start with some basic rules.   Research, due diligence, and simple questioning of those who should know about the property is the first step by those in ownership or those about to take ownership of property.  As boring as it is, creation of a policy for detecting hazardous releases as well as a policy dealing with the release when it occurs is the best remedy.  These protocols also provide a defense should a claim or problem occur later in the life of the property.

To view relevant material, articles, and blogs of Mr. Ganje:

https://lexenergy.net/blog/

Property Rights Anyone?

A pipeline company has plans to construct a pipeline of about 2,000 miles in length. A good number of miles of the project would cut through South Dakota. This pipeline would  be a carbon-dioxide carrier and would run under landowners’ private properties in the state with a goal of carrying the commodity to its end user. For my discussion on the fairness of a private business using the process of eminent domain as a part of its plans for profit – see my article:  lexenergy.net/south-dakotas-approach-condemnation/
South Dakota landowners recently received from the pipeline developer an advance notification of what I call pre-construction activity in order that the developer, in compliance with a unique statute, follows the state’s private property access ‘notification law.’ The notices to landowners indicated the developer’s intent under the auspices of state law to enter private property for the purpose of “making survey for civil construction, biological, and cultural reasons.” The notices also disclosed the use of shovels and spades, while others included backhoes, trenches, and drilling.  Developer’s proposed activity would be done not as a part of an ongoing or completed legal condemnation proceeding, but rather before any formal construction of a pipeline and before any condemnation or other similar legal taking may have occurred.  No court order is needed. No consensual easement need be recorded. No agreement is required between the developer and the property owner. Welcome to the new Soviet Union —  South Dakota style.
The poorly written South Dakota statute we review allows pipeline permit applicants entry onto private property for the examination and survey of potential projects for an indefinite ‘look-see.’ The statute provides no time limit. This anomalous right-of-entry law was written to stack the cards against property owners. If harm to the property from the developer’s visit occurs, the property owner must prove “actual damages.” One will not find that phrase elsewhere in the legal world of eminent domain. No sir. The lobbyists had a field day drafting this stuff while the attorneys consulted on the proposed law must not have taken a course in constitutional law. 
Please good reader do not consider that the legislature will make amends for this statutory aberration. Once the state legislature puts something in concrete, after it cures, it only later steps in it. The statute is so arguably unconstitutional that the legislature chose not to grant this right of legal trespass to any government entity. “This section does not apply to the state or its political subdivisions.”
The South Dakota Constitution directs that, “Private property shall not be taken for public use, or damaged, without just compensation … .” The law under review however includes no findings indicating the authorized trespass in done for public use; not does it provide a process for compensation. The South Dakota Legislature adopted the statute in 2016.  It applies to a development project which requires a siting permit under chapter 49-41B. The law liberally allows an “examination and survey to be made as necessary for its proposed facilities.”
The statute also creates a false sense of due process. Although the notification mechanism for giving landowners 30 days’ written notice before entry attempts to address constitutional due process concerns, the statute is vague; the law does not include a provision specifying the length of time a permit applicant is able to be on the landowner’s property; and it does not attempt to limit the scope of the on-site examination and survey which a developer might perform. This special law, which creates a unique access right to private property, and an unusual term for possible damages, makes no mention of a right to a jury trial  to determine damages. While a jury trial is probably still available, it is clear the legislature prefered to avoid the nicety of a jury trial. The law giveth to others and taketh away from thou. Welcome to the new world order.

To view relevant material, articles, and blogs of Mr. Ganje:

https://lexenergy.net/blog/