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Judge Rules Against Rural Iowa County Trying To Restrict Carbon Capture Pipeline Location

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.

Summit Carbon Solution's pipeline would span more than 700 miles in the northwestern Iowa.

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

The company, 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 to transports captured carbon dioxide emissions from ethanol plants to North Dakota for underground sequestration.

The project includes more than 700 miles of pipeline in northwestern Iowa. Landowners along about 30% of the route have declined to grant Summit easements to build on their properties and will likely face eminent domain proceedings starting next month.

Judge finds Legislature didn’t envision counties regulating pipelines

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 to use 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 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.

She added, “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. 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.

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 for comment.

Shelby’s ordinance required that hazardous liquid pipelines be at least 2 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; and1,000 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 on for months.

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