Whether Iowa counties can enforce setbacks for hazardous liquid pipelines may be decided with a case in front of the 8th Circuit Court of Appeals.
Federal judges heard oral arguments Wednesday from attorneys representing Story and Shelby counties, and Summit Carbon Solutions and William Couser.
Summit and Couser sued the two counties in 2022 over new ordinances that would affect where carbon dioxide pipelines can be built and require extra steps for pipeline companies. In late 2023, the Southern District Court of Iowa ruled in favor of Summit and Couser, and the counties appealed.
Summit is trying to build a 2,500-mile pipeline network across five states to pump liquified carbon dioxide from nearly 60 ethanol plants to underground storage sites near Bismarck, N.D. Couser is a Story County farmer and board member of Lincolnway Energy. The ethanol plant is one of Summit’s partners on the proposed project.
The ordinances
In Story County, the ordinance prohibits a CO2 pipeline from coming within a quarter mile of dwellings, city boundaries, urban expansion areas and certain places of assembly, like houses of worship and golf courses.
Shelby County’s ordinance says a CO2 pipeline cannot be less than two miles from any incorporated city; a half mile from churches, schools, nursing homes and hospitals; a quarter mile from parks; and 1,000 feet from any occupied structure or utilities. Shelby County also requires landowners and pipeline companies to apply for conditional use permits from the county to construct a pipeline or enter a voluntary easement.
Both ordinances mandate that pipeline companies provide emergency response or preparedness plans to the counties, along with other requirements.
The arguments
Summit and Couser argue that Iowa’s utility regulators have control over pipeline routes and that federal regulators oversee pipeline safety — not counties.
Attorney Ryan Koopmans represented Summit during oral arguments in front of the federal appeals court.
“The law is clear that safety standards are left to the secretary of the Department of Transportation," Koopmans said. "And in this case, the setback requirements and other provisions are clearly safety standards."
Representing the counties, Jason Craig agreed that safety standards — like the size of a pipe — are regulated by federal authorities. But he said any zoning decision for industrial land use incorporates safety concerns, along with future growth and development plans.
Craig also argued that "counties and municipalities have broad authority to act unless the Legislature has expressly limited their authority” under Iowa law.
Summit is also suing Emmet, Kossuth and Palo Alto counties for passing similar ordinances. A lawsuit against Bremer County is the most recent.
Permit updates in the Dakotas
When Iowa’s utility regulators decided earlier this year to grant Summit a pipeline route permit and the power of eminent domain for its first phase of the project, it came with conditions.
This includes the requirement that “Summit Carbon will not be allowed to begin construction in Iowa unless and until the North Dakota and South Dakota public utility commissions have approved a route and until North Dakota has permitted Summit Carbon’s sequestration site.”
North Dakota
The North Dakota Public Service Commission approved Summit’s pipeline route permit on Nov. 15. The PSC denied Summit’s first application last year, saying the company failed to meet its “burden of proof” to show that the project would have minimal effects on the environment and welfare of North Dakotans.
During the commissioners’ meeting, PSC Chair Randy Christmann said Summit met the legal requirements for the permit but that he understands why many landowners oppose eminent domain.
“We’re not concluding today that SCS is a common carrier, nor that they qualify for eminent domain," Christmann said. "That’s not in our jurisdiction. That’s not in the siting process."
Summit’s CEO Lee Blank said the company was pleased with the permit decision.
“It's been a long process. The fact that we’ve now got our permit approved here in the state is a very big deal for Summit Carbon Solutions, but just one more step in the process,” Blank said.
Summit is still waiting on sequestration permits for three deep well sites near Bismarck. The North Dakota Department of Mineral Resources held hearings this summer and is reviewing the application. It will make a recommendation to the North Dakota Industrial Commission, which includes the governor.
Summit said it already has two permits in hand through a partnership with Minnkota Power Cooperative.
Many pipeline opponents said the recent North Dakota decision has made them dig in their heels even more on the project.
“It’s not something people are willing to compromise on. They are in this to protect their future, their farms, their legacies, their families, their communities. There’s just too much at stake,” said Jessica Mazour, the conservation program coordinator with the Sierra Club of Iowa.
Along with current lawsuits, Mazour said North Dakota landowners who did not sign voluntary easement agreements with Summit will have the ability to challenge eminent domain in court.
Plus, Summit still needs a route permit for South Dakota, which has the second most ethanol plant partners after Iowa. It’s also the main artery to the proposed sequestration sites in North Dakota.
South Dakota
Summit submitted its second pipeline permit application to the South Dakota Public Utilities Commission Tuesday. The commission denied the company’s first application last year, saying the route violated several county ordinances with pipeline setbacks.
In a press release, Summit said it made major reroutes in Spink, Brown, McPherson and Lincoln counties and adjustments with landowners. The 700-mile pipeline would connect to 14 ethanol plants and a planned sustainable aviation fuel plant.
Summit said most of the carbon dioxide captured from the five-state project will be stored permanently underground in North Dakota.
"But excess capacity will be available to support next generation fuels like e-SAF and green methanol, along with uses in water treatment, food processing and dry ice production, driving regional economic growth,” the press release said.
The permit application process in South Dakota is expected to take a year before a decision is made.
