Iowa Counties Seek Supreme Court Ruling Upholding Local Restrictions for Summit Pipeline

Two Iowa counties want the U.S. Supreme Court to weigh in on whether they can require Summit Carbon Solutions to leave additional space between its planned $9 billion carbon capture pipeline and schools, churches and other buildings.

Story and Shelby counties are petitioning the Supreme Court to reconsider a U.S. Eighth Circuit Court of Appeals ruling that blocks them from requiring Summit and other hazardous liquid pipeline developers to meet the setback requirements. The counties' petition, filed Friday, Oct. 3, centers on how courts consider safety concerns when assessing state or local governments’ pipeline routing restrictions.

Summit didn't immediately respond to a request for comment Thursday.

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The counties' attorneys, the Washington, D.C. firm of Figel & Frederick, wrote in the petition that the Fourth and Fifth Circuit Courts of Appeals, based in Richmond, Virginia, and New Orleans, Louisiana, respectively, are at odds with the St. Louis-based Eighth Circuit on how they interpret the law. A high court decision is needed, the attorneys wrote, because the Eighth Circuit’s ruling creates a regulatory vacuum "in which no government can control where pipelines can go."

The decision “would strip tens of thousands of state and local governments of authority over millions of miles of pipelines, even as carbon dioxide systems like Summit’s are proliferating rapidly,” they wrote.

What led to the counties' pipeline setbacks?

Responding to concerned residents, the Shelby County in western Iowa and metro Des Moines neighbor Story County in central Iowa adopted ordinances requiring hazardous liquid pipelines to meet setbacks from cities and buildings, with what they said was an eye primarily to protecting property values and economic development opportunities.

Ames-based Summit announced plans four years ago to build the 2,000-mile pipeline to capture carbon dioxide from dozens of ethanol plants in Iowa, South Dakota, Minnesota and Nebraska, liquefy it under pressure, and transport it to North Dakota, where it would be sequestered deep underground. The goal is to lower the effective carbon footprint of ethanol, allowing it to qualify as a low-carbon fuel eligible for generous federal tax credits.

Summit legally challenged the county ordinances, arguing that pipeline safety is governed by the federal Pipeline Safety Act, which preempts local efforts to add more stringent safety requirements. The counties argue, however, that the pipeline act "withholds federal authority” over the “location or routing” of pipelines, “preserving that power for state and local governments.”

A district court agreed with Summit and issued a summary judgment in 2023 that blocked the counties' restrictions.

Why are the counties contesting the appeals court decision?

The counties appealed the district court ruling to the Eighth Circuit, which upheld the decision in June.

The court was skeptical of the counties' claim that the main reason for the setbacks was economic, noting in particular that Shelby County increased its setback requirements for churches, schools and nursing homes. “It suggests the effect on safety is not incidental, but rather the 'primary motivation,'” the court wrote.

In addition to federal preemption, the appeals court said the authority of the Iowa Utilities Commission, which has oversight of the pipeline's route, also trumps local ordinances. The state board granted Summit a permit to build the pipeline last year.

Federal appeals courts weigh safety differently, counties say

The counties' attorneys said in the Supreme Court petition that the federal appeals courts have different approaches on the safety issue. The “Fourth and Fifth Circuits focus on the 'effect' of a challenged state or local law,” while the Eighth Circuit “focuses on the 'primary motivation' behind a challenged state or local rule,” they wrote.

They added that the Fourth and Fifth Circuits “uphold measures that govern where a pipeline may go, but strike down ones that control how to safely design, install, inspect, operate, and maintain a pipeline.” But if “a state or locality expressed too much concern about safety when regulating a pipeline’s location or routing,” the Eighth Circuit "treats the enactment as a preempted 'safety standard,'” they wrote.

Eighth Circuit judges disagree on some issues

The counties point to a partial dissent by Eighth Circuit Judge Jane Kelly. “She criticized the majority’s motivation-based analysis, noting that '[zoning] ordinances are typically, and understandably, driven by multiple concerns, including economic, environmental, and safety,'" the counties wrote.

“From there, she concluded that 'the setback requirements are location and routing standards that, though animated in part by safety considerations... do not amount to the type of standards that Congress expressly reserved for federal regulation,’” they said.

They said the Eighth Circuit's majority ruling — written by Chief Circuit Judge Steven Colloton and joined by Judge Duane Benton — “does not prohibit local governments from considering safety, nor prevent them from enacting all zoning ordinances, as the counties suggest."

“This court emphasizes the distinction between safety standards — which the (Pipeline Safety Act) preempts — and safety considerations — which the PSA does not preempt," Colloton wrote.

The counties' attorneys, however, said the court's distinction between zoning regulations primarily motivated by safety and those that "merely account for 'safety considerations'" is "illusory — and unworkable."

The result, they wrote, can only be regulatory chaos, as courts "uphold and strike down materially identical state regulations based only on the happenstance of judicial assessments of the ‘true’ intentions lurking behind them.”

The Supreme Court will decide at a later date whether to take up the appeal.