Appellate court upholds decisions favoring Summit over county pipeline ordinances
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 Nov. 20, 2024. (Photo by Aaron Sanderford/Nebraska Examiner)
A federal appeals court on Thursday upheld lower court decisions barring counties from imposing safety standards on a pipeline subject to federal safety standards.
The cases involved Summit Carbon Solutions, the company proposing to build a carbon sequestration pipeline through the state, and county supervisors from both Story and Shelby Counties.
Summit sued the counties in 2022 for enacting ordinances that required county-specific setback requirements and other regulations the company argued were preempted by federal pipeline safety laws.
A federal judge ruled in favor of Summit in Dec. 2023 and issued permanent injunctions, stopping the counties from enforcing the regulations, which would have impacted the carbon sequestration pipeline and other pipelines.
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The county supervisors appealed the decision and presented oral arguments in November 2024 to the U.S. Court of Appeals for the Eighth Circuit. The counties argued that local land use and zoning regulations are not 'preempted standards' under the Pipeline Safety Act.
Writing for the appeals court, U.S. Circuit Judge Duane Benton wrote held that the county ordinances 'focus' on safety and 'repeatedly' mention safety risks associated with the pipeline, which 'undermines' the Pipeline Safety Act's goal of preempting state regulations on safety.
'This holding does not prohibit local governments from considering safety, nor prevent them from enacting all zoning ordinances, as the counties suggest,' Benton said in the opinion. 'This court emphasizes the distinction between safety standards — which the PSA preempts — and safety considerations — which the PSA does not preempt.'
The county ordinances also included emergency response requirements and abandonment provisions which the court ruled were also preempted by federal regulations.
Circuit Judge Jane Kelly, however, dissented on those elements and wrote she does not believe that PSA preempts setback and abandonment provisions. Kelly said that while the counties' setback requirements are 'animated in part by safety considerations' they do not have the 'direct and substantial' effect on safety that is reserved for federal regulation.
Kelly also wrote that per her understanding, the Pipeline Safety Act 'does not cover pipelines that have been abandoned' and therefore the Shelby County abandonment provision is not 'expressly preempted.'
The court affirmed the lower court's decision in both cases, but ordered the federal court for the Southern District of Iowa to reconsider an additional ordinance that's at issue in the Story County case.
Jason Craig, the attorney representing the counties, did not immediately respond to requests for comment on the decision.
Sabrina Zenor, on behalf of Summit Carbon Solutions, said the ruling 'confirms' pipeline safety regulation set by the federal government and the Iowa Utilities Commission's role in route and permit decisions.
'This supports a consistent, lawful permitting process for critical infrastructure projects like ours,' Zenor said in a statement.
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