The Roman L. Hruska Federal Courthouse in Omaha, where the Eighth U.S. Circuit Court of Appeals held its hearing on the pipeline cases on Wednesday. (Photo by Aaron Sanderford/Nebraska Examiner)
Judges in the U.S. Court of Appeals for the Eighth Circuit heard oral arguments Wednesday in Omaha for cases between Iowa counties and Summit Carbon Solutions, an Iowa-based company seeking to build a 2,000-mile carbon sequestration pipeline.
Shelby County and Story County had enacted county ordinances stipulating the proximity of hazardous liquid pipelines to residences and on providing emergency response plans in the event of a pipeline rupture.
Summit sued the counties in 2022, arguing that federal safety standards from the Pipeline Safety Act preempt local ordinances.
A federal judge in the Southern District of Iowa ruled in favor of Summit in December 2023, and the counties appealed the judge’s decision.
The counties argued they 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.
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Sherri Webb traveled to Omaha for the oral arguments from Shelby County, she said, because she felt her county did its job in enacting the ordinance to protect the land, the people and its character.
“Why couldn’t they have done another route?” Webb said and noted she was concerned about erosion to her grandmother’s land. “We’re trying to save her land from being ruined.”
Does location equal safety?
Jason Craig argued on behalf of the counties on Wednesday at the Roman L. Hruska Federal Courthouse.
“The district court erred and should be reversed because local land use regulations, zoning regulations, are not preempted safety standards under the Pipeline Safety Act,” Craig argued.
Judge Duane Benton questioned Craig, and pointed out that the Shelby County ordinance notes 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 how it would be constructed.
“Summit is asking this court to basically expand the scope of the version of a preemption clause to hold that any local law that’s concerned with safety is preempted,” Craig said.
Ryan Koopmans gave oral arguments on behalf of Summit Carbon Solutions. He argued the ordinances set by the counties 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 that the provision in the Pipeline Safety Act that says the U.S. Department of Transportation cannot regulate location and routing, is “not a preemption savings clause.”
Judge Jane Kelly said Koopmans’ argument “makes sense” and that just because something affects location, “doesn’t necessarily mean” it’s not a safety standard. But she wondered whether 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 said there is no difference between a safety standard and a safety concern, and that the counties “have offered no other justification other than safety” for a 1,000-foot setback of the pipeline.
He gave an example that 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 explained, 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 said.
Later, Benton questioned that same farmhouse-in-the-middle-of-nowhere example, saying if the resident farmed there, it could be a situation of 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.
Who can set the standards?
Of interest to the court was an Iowa Supreme Court ruling, Goodell v. Humboldt County, that upheld state preemption over county ordinances.
Benton said he believes the case “settles that” against Craig’s argument that counties have “broad authority to act” unless “expressly limited” by the Legislature.
“The statute says the authority to approve location, route of hazardous pipelines is to the Iowa Utilities Board, and … gives them the just and proper discretion as to that,” Benton said.
Craig argued the Goodell ruling pertained to county ordinances that created “direct conflicts” that were “irreconcilable” with state statute, which he said is different from the counties in this case that imposed additional requirements.
Koopmans argued the Iowa Supreme Court decision shows that a “county permitting scheme that sets any different standards” from state issued permits, would be preempted by the state.
Kelly asked if Summit had to show the Iowa Utilities Commission (referred to throughout the case as the Iowa Utilities Board, its former name) that its route was in compliance with all of these county ordinances, when the company applied for its permit.
Craig said “that’s exactly what they’re required to do.”
Koopmans argued, pulling from the Iowa Utilities Commission approval of Summit’s permit application, that the company 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 that “conflict with the ordinance.”
Craig, in his rebuttal, said it was 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.”
Judges said a decision would be issued in “due course.”
Summit is also waiting decisions on other pending lawsuits including one against landowners, heard in October by the Iowa Supreme Court, and it recently filed a similar lawsuit against Bremer County for its ordinances.
Per the Iowa Utilities Commission, Summit cannot begin construction on the pipeline in Iowa until it has received permit approval from North Dakota and South Dakota. The company received approval from North Dakota Nov. 15 and resubmitted its application in South Dakota Tuesday.
Aaron Sanderford, a reporter for the Nebraska Examiner, contributed to this article.
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