Appeals court hears arguments over Iowa counties’ pipeline ordinances

OMAHA— Judges in the 8th
U.S.Circuit Court of Appeals in
Omaha heard oral arguments
Wednesday for cases between Shelby
and Story Counties and Summit
Carbon Solutions regarding
ordinances the counties enacted
in 2022 which would affect the proposed
construction of a 2,000 mile
carbon sequestration pipeline.
In 2022, Shelby County was the
first county along the proposed
pipeline route in Iowa to pass an ordinance
which stipulated the proximity
of hazardous liquid pipelines
to residences. The ordinance
also required pipeline companies
to provide emergency response
plans in the event of a rupture.
Soon after, Story County enacted a
similar ordinance.
Summit sued the counties, arguing
federal safety standards from
the Pipeline Safety Act preempt local
ordinances.
In December 2023, a federal
judge in the Southern District of
Iowa ruled in favor of Summit.
The counties appealed the judge’s
decision, arguing counties could
make these regulations because
the Department of Transportation,
under the federal Pipeline
Safety Act, was not granted permission
to regulate the location or
route of a pipeline.
Jason Craig, an attorney with
Ahlers & Cooney, P.C., who argued
on behalf of the counties Wednesday,
said the district court erred
last December and the decision
should be reversed.
“Local land use regulations, orunder
the Pipeline Safety Act,” Craig argued.
Judge Duane Benton noted the Shelby County ordinance
discusses safety risk “at length.”
“Admittedly, safety was one concern – I think safety is
part of any zoning decision,” Craig said. “But that doesn’t
turn it into a preempted standard.”
Craig said the thickness of a pipe, or the “actual design
and construction of the pipeline” would be safety standards
with federal oversight. The county ordinances pertained to
the location of the pipeline, not the construction.
“Summit is asking this court to basically expand the scope
of the version of a preemption clause to hold that any local
law concerned with safety is preempted,” Craig said.
Ryan Koopmans gave oral arguments on behalf of Summit
Carbon Solutions, and stated the counties’ ordinances
were concerned with safety, and should be preempted by
federal laws.
“In this case, the setback requirements and other provisions
are clearly safety standards,” Koopmans said.
Koopmans argued a provision in the Pipeline Safety
Act stating the U.S. Department of Transportation cannot
regulate location and routing is “not a preemption savings
clause.”
Judge Jane Kelly said that Koopmans’ argument “makes
sense” and that just because something affects location,
“doesn’t necessarily mean” it’s not a safety standard.
However, she asked if there’s a difference between a safety
standard and a safety concern from a county.
“It’s difficult to think of a local ordinance, like a zoning
ordinance, that doesn’t have safety baked into it,” Kelly said.
Koopmans stated there is no difference between a safety
standard and a safety concern, and the counties “have offered
no other justification other than safety” for a 1,000-foot setback of the pipeline.
He provided an example, saying if the state made the argument
it didn’t want any above-ground pipelines so people
could continue farming that land, it would be an economic
regulation, not a safety regulation. A safety regulation,
Koopmans stated, would be if the state said it wouldn’t allow
above-ground pipelines because they were unsafe.
“Is there any logical justification for 1,000-foot setback
from a farmhouse in the middle of the county, other than
safety?” Koopmans asked.
Benton questioned the example, saying if the resident
farmed, there could be economic development concerns.
“Farming is economic development in Iowa, isn’t it?” Benton
asked.
“It is, and you can farm overtop of the pipeline,” Koopmans
replied.
The Shelby County ordinance specifies a 1,000-foot setback
from all residences, based on a public health position
statement from the county’s board of health.
“They admit it,” Koopmans said when asked if it was necessary
to look at the county supervisors’ intent.
Kelly questioned if Summit had to show the Iowa Utilities
Commission (formerly named the Iowa Utilities Board)
if the proposed route was in compliance with county ordinances
when the company applied for its permit.
Craig said “that’s exactly what they’re required to do.”
Koopmans said Summit had to show the commission how
the project would “interact with the present and future land
use and zoning, not necessarily how it complies.”
Koopmans pointed again to the commission’s approval
of the permit, and said the commission moved some of the
company’s proposed routes through Shelby County to locations
which “conflict with the ordinance.”
Craig called it a “fool’s errand” to “inquire into the motives”
of state law.
“The question is, is it a preempted safety standard or is
it a location and routing regulation?” Craig said. “And the
zoning ordinances are location routing regulations.”
Shelby County Board of Supervisors Chairman Steve
Kenkel said he was “cautiously optimistic” of a favorable
ruling based on what he heard during the oral arguments.
“Our attorney Jason Craig did a good job of hitting on the
core arguments in the case.”
Kenkel said Craig doesn’t expect a ruling for at least six
months.
“Time will tell the story of who is in control of protecting
the health, well-being and economic development of our
county and its residents.”
Summit recently filed a similar lawsuit against Bremer
County for its ordinances.
A stipulation in the Iowa Utilities Commission’s approval
of Summit’s permit states construction of the pipeline in
Iowa can not begin until Summit has received permit approval
from both North Dakota and South Dakota.
The company received approval from North Dakota earlier
this month, and resubmitted its application in South
Dakota November 19.