Groups argue in federal court for local control of pipeline routes (2024)

Some county leaders worry about carbon dioxide leaks and have enacted pipeline ordinances. In this photo, Clouds of water vapor and carbon dioxide gas escape from a CO2 pipeline near Sulphur, Louisiana, on April 3, 2024. (Courtesy of Ward 6 Fire Protection District)

A federal judge in Iowa has wrongly limited the authority of county and state officials to restrict the placement of carbon dioxide pipelines for public safety, according to several groups that are challenging the judge’s recent decisions.

Those challenges stem from December rulings in which Chief Judge Stephanie Rose, of the federal Southern District of Iowa, blocked two Iowa counties from enforcing ordinances that create minimum separation distances between the pipelines and buildings that are occupied by people or animals.

They were the result of lawsuits Summit Carbon Solutions filed against counties that have attempted to govern where its sprawling pipeline system can go and to require the company to provide plans that show the safety risks of a system breach.

Summit wants to build a pipeline network that would transport captured carbon dioxide from ethanol plants in five states — including 30 in Iowa — to North Dakota for underground storage. Its initial construction permit is awaiting a decision in Iowa, and the company has sued five counties in the state that enacted ordinances.

Rose sided with Summit in two of the lawsuits regarding Shelby and Story Counties, and the other three are paused until appeals of Rose’s decisions conclude.

Summit has argued — and Rose agreed — that state law gives the Iowa Utilities Board the ultimate say on pipeline routes and that the safety-related provisions of the ordinances conflict with federal law.

The ordinances reflect public apprehensions about the pipelines, which have the potential to create a deadly plume of carbon dioxide if they rupture.

Separation distances

Rose said minimum separation distances — or setbacks — are “within the field of safety standards” and are the territory of federal regulators. As such, neither county nor state can impose them, she reasoned.

That interpretation of the law is a concern to the Iowa Farm Bureau Federation, which has asked the utilities board to keep Summit’s pipe at least 400 feet from homes and livestock buildings.

There are 112 homes and 36 livestock barns within 400 feet of Summit’s initial proposed route, wrote Chris Gruenhagen, an attorney for Iowa Farm Bureau, in a court brief in partial support of the appeals.

“The district court’s ruling … would restrict the state’s ability to judiciously review the proposed location and routing of the proposed pipeline,” Gruenhagen wrote.

Rose’s interpretation of federal law was contradicted in September by the Pipeline and Hazardous Materials Safety Administration, which regulates the design, construction and operation of carbon dioxide pipelines to ensure public safety.

The agency sent a letter to Summit that month that said state and local governments are allowed to establish minimum separation distances.

“Local governments have traditionally exercised broad powers to regulate land use, including setback distances and property development that includes development in the vicinity of pipelines,” wrote Alan Mayberry, a pipeline safety administrator for PHMSA. “Nothing in the federal pipeline safety law impinges on these traditional prerogatives of local — or state — government, so long as officials do not attempt to regulate the field of pipeline safety preempted by federal law.”

County versus state authority

Rose decided the initial versions of the Shelby and Story ordinances were so restrictive they “will lead to a situation where the IUB may grant a permit to construct a pipeline and Summit is unable to do so.”

Story County modified its ordinance after the lawsuit was filed to include lesser setbacks. It’s unclear whether the changes would alleviate Rose’s concerns because she did not address the changes in her December ruling.

Rose did, however, say state law does not explicitly prevent counties from adopting the setbacks.

An attorney for the counties argues there is not evidence the ordinances are overly restrictive, in part because they would allow Summit to ask for exceptions when a pipeline could not comply with the setbacks.

“In reaching these conclusions, the district court fundamentally misapplied Iowa law,” wrote Jason Craig, a Des Moines attorney who is representing the counties in federal court.

It’s unclear when the appeals will conclude. They were initiated in December and consolidated in January, and Craig filed a brief with his arguments in early May. Summit’s response is due July 1.

Iowa Farm Bureau, the Pipeline Safety Trust and the Iowa Farmer’s Union have also filed briefs that argue against various determinations by the judge.

“Given the impacts of hazardous liquid pipelines, and carbon dioxide pipelines in particular, it is important to give local ordinances their rightful place in protecting the public from those impacts,” wrote Wallace Taylor, a Sierra Club of Iowa attorney who is also representing the Pipeline Safety Trust.

This article first appeared in theIowa Capital Dispatch,a sistersite of the Nebraska Examiner in the States Newsroom network.

Originally published on nebraskaexaminer.com, part of the BLOX Digital Content Exchange.