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Federal judge says counties can’t restrict carbon dioxide pipeline locations

Posted at 10:42 AM, Jul 13, 2023

An ordinance adopted by Shelby County that would severely restrict the placement of a proposed carbon dioxide pipeline conflicts with state and federal regulations and should not be enforced, a federal judge ruled this week.

The judge granted Summit Carbon Solution’s request for a temporary injunction that prevents that ordinance’s enforcement.

“It’s extremely disappointing,” said Steve Kenkel, chairperson of the Shelby County Board of Supervisors that approved the ordinance. “We have a duty as a supervisor to protect our county. How do we do this when other levels of government won’t support counties?”

He did not know whether the county will appeal the decision.

Summit, along with a Story County farmer who is a founder of an ethanol plant, has sued three counties for ordinances that restrict how closely hazardous liquid pipelines can be located to cities, schools, livestock facilities, electric transmission lines, homes and other facilities.

The lawsuits seek declarations that the ordinances are preempted by federal and state regulations,  permanent injunctions that prevent their enforcement and attorney fees.

Summit seeks to build a pipeline network in five states that connects to ethanol plants to transport their captured carbon dioxide emissions to North Dakota for underground sequestration.

The project includes more than 700 miles of pipe in the northwestern half of Iowa. The people who own land for about 30% of the route have declined to grant Summit easements to build on their properties and will likely be subject to eminent domain proceedings starting next month.

The county ordinances were borne of the sometimes fierce opposition to Summit’s project and other carbon dioxide pipeline proposals by two other companies. Opponents worry about public safety if a pipeline ruptures and say the projects shouldn’t qualify for eminent domain.

The ruling by Chief Judge Stephanie Rose, filed Monday in the federal Southern District of Iowa, said state law does not explicitly prohibit the Shelby County ordinance in western Iowa but that such a prohibition is implied.

Rose noted the statutory role county supervisors have in land restoration after a pipeline is built but not in pipeline placement.

“This omission is evidence that the Legislature did not envision a role for counties in regulating the location of pipelines,” Rose wrote.

Further: “Common sense suggests these restrictions would eliminate all or almost all land in Shelby County on which an (Iowa Utilities Board) approved pipeline could be built,” the judge wrote. “This creates a serious possibility the IUB would approve the construction of the pipeline but Summit would be unable to build because it could not comply with the requirements of the ordinance.”

Rose also said the ordinance’s requirements for pipeline companies to submit safety plans to the county and to notify the county when use of a pipeline is discontinued conflict with federal rules.

“State and local agencies cannot regulate safety matters,” Rose wrote.

Kenkel said counties need early access to dispersion models of the Summit project that show what places are most likely to be affected by a pipeline breach. He said the ordinance was further meant to protect economic and housing development in the county’s cities by keeping pipelines two miles away from them.

The project is also unpopular in Shelby County, Kenkel said, because the pipeline is not connecting to ethanol plants there. Affected landowners might be forced to give land easements through eminent domain “while serving no benefits to them,” he said.

In issuing the temporary injunction, Rose found that Summit is likely to succeed with its lawsuit against Shelby County. It’s unclear when the suit will conclude.

Judges have not made decisions about temporary injunctions in the two other lawsuits against Emmet and Story counties.

“Summit Carbon Solutions is pleased the (judge) affirmed that federal regulations and state laws preempt ordinances at the county level,” the company said Wednesday.

An attorney for Shelby County did not immediately respond to a request to comment for this article.

Shelby’s ordinance has requirements that hazardous liquid pipelines be at least two miles from a city’s limits; a half mile from churches, schools, nursing homes, long-term care facilities and hospitals; a quarter mile from public parks and recreation areas; 1,000 feet from occupied buildings, livestock confinements, electric generation and transmission equipment, and drinking water and wastewater treatment plants.

The IUB is poised to start a final, evidentiary hearing for Summit’s project on Aug. 22. The hearing has the potential to go for months.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: Follow Iowa Capital Dispatch on Facebook and Twitter.

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