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County pipeline ordinances await federal appeals decision

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County pipeline ordinances await federal appeals decision

Feb 20, 2024 | 5:45 pm ET
By Jared Strong
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County pipeline ordinances await federal appeals decision
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Several Iowa counties have adopted zoning ordinances to restrict carbon dioxide pipelines. (Photo by Andrew Burton/Getty Images)

The fate of several county ordinances that restrict the placement of carbon dioxide pipelines in Iowa might hinge on the federal court appeals of two lawsuits.

Shelby and Story counties were the first of five counties sued by Summit Carbon Solutions over their ordinances that require the pipelines to be located minimum distances from houses, schools, medical facilities and other places where people and livestock congregate.

Those first lawsuits were filed in November 2022, and a federal judge decided in December 2023 that the county restrictions are overruled by the authority of state and federal regulators and, as such, cannot be enforced.

Since the early lawsuits were filed, a further three counties have passed their own similar ordinances — including two since the judge’s decisions — despite the threat of litigation from Summit. The company promptly sued them, too, seeking permanent injunctions to bar enforcement of the ordinances.

The other counties are Emmet, Kossuth and Palo Alto. All three of those lawsuits will likely be paused until the appeals are decided, court records show. Dickinson County is also considering its own ordinance.

Summit wants to build an $8 billion, five-state pipeline system that would connect to about 50 ethanol plants, half of which are in Iowa. It would transport captured carbon dioxide to North Dakota for underground storage through about 2,400 miles of pipe.

The ordinances reflect the fears of residents about what might happen if the system suffers a catastrophic breach. Under certain conditions, pipeline breaks can release a thick plume of carbon dioxide that stays close to the ground and can travel significant distances.

That was the case in Satartia, Mississippi, in 2020, although federal regulators have said that incident — which sickened dozens of people — was an outlier.

Summit has said the county ordinances will disrupt its route and potentially block its project entirely. The company prevailed earlier this month over county ordinances in North Dakota, but it has been stymied by them in South Dakota.

South Dakota lawmakers are considering new legislation to bar their counties from restricting the pipelines. The bill cleared an initial vote last week.

The appeals

Chief Judge Stephanie Rose, of the federal Southern District of Iowa, sided with Summit in two of its lawsuits in December.

“The challenged restrictions impose severe limitations that will lead to a situation where the (Iowa Utilities Board) may grant a permit to construct a pipeline and Summit is unable to do so,” Rose wrote.

Shelby and Story counties appealed the decisions later that month. Those appeals have been consolidated into one set of proceedings, and an initial brief from the counties is due March 8, court records show. It’s unclear when the Eighth Circuit Court of Appeals might issue a final decision.

Summit’s lawsuit against Emmet County — the third it filed, in March 2023 — was recently paused, pending the appeals.

“Given the similarities between the ordinances and preemption claims at issue in the cases, the county expects that the Eight Circuit’s resolution of the Shelby County and Story County appeals will be significant to — or even possibly dispositive of — the resolution of the issues in this case,” wrote Jason Craig, a Des Moines attorney who represents the counties, in a request for the stay of proceedings regarding Emmet.

The newest lawsuits against Kossuth and Palo Alto counties were filed in January, and requests to pause those proceedings until the appeals court rules are pending.

The IUB is poised to issue its decision on whether to grant or deny Summit a hazardous liquid pipeline permit in Iowa. The company has said it aims to have the pipeline system operational in 2026.