Four States Support Counties Seeking Full 8th Circuit Review of County Pipeline Ordinance Preemption Ruling

Shelby and Story County in Iowa have petitioned the 8th Circuit Court of Appeals for an en banc review before all 11 active judges on the court, of its recent 3-judge panel’s decision that county ordinances aimed at providing commonsense protections against risky fossil fuel projects like carbon dioxide pipelines are preempted by federal law.

Now four states — Minnesota, Michigan, Oregon and Vermont — have filed a “friend of the court” brief in support of the counties’ petition.

The court’s majority opinion found that ordinances enacted by Shelby County and Story County in Iowa related to carbon dioxide pipeline setbacks, consideration of safety when routing pipelines, and pipeline abandonment are preempted by the federal Pipeline Safety Act.

Arguing the case presents “exceptionally important questions,” the states’ amicus brief says they “have a strong interest in ensuring their traditional powers to regulate land use is respected… [and] have a long history of regulating land use, including environmental protection, land reclamation, and zoning. Amici States often exercise these powers through their local governmental units, including counties and cities. These regulations serve multiple critical functions that benefit the health, welfare, and economic security of the citizens of Amici States, and preserve the use of enjoyment of their properties. Such land use regulations are traditional exercises of state sovereign police powers.”

“Congress’s recognition of state sovereignty over land use is embodied in the Pipeline Safety Act’s non-preemption of pipeline routing decisions and reflected in opinions by multiple Courts of Appeals finding no preemption of state and county land use regulations relating to pipelines. The 8th Circuit panel decision, however, incorrectly viewed the ordinances passed by Shelby and Story Counties as safety standards that were preempted by the PSA. In doing so, the panel majority did not appropriately consider that local routing decisions and land reclamation may incidentally impact safety while not being safety standards. The panel majority decision also conflicts with decisions from the 4th and 5th Circuit Courts of Appeals that have upheld similar ordinances.”

The Pipeline Safety Trust separately submitted its own “friend of the court” brief to the 8th Circuit, largely mirroring the counties’ arguments asking for en banc review. (Bold Alliance also earlier submitted a brief in support of counties’ arguments, before the court issued its decision.)

The court’s anti-local government ruling means the county ordinances that address these “safety” issues overstepped their authority. Meanwhile, the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) has not enacted any meaningful routing standards, has failed to take local emergency response information needs into account, and has never issued any safety standards for pipelines after abandonment – leaving landowners in limbo to fend for themselves.

Notably, the 3-judge panel of the 8th Circuit stated its ruling “does not prohibit local governments from considering safety, nor prevent them from enacting all zoning ordinances… This court emphasizes the distinction between safety standards—which the PSA preempts—and safety considerations—which the PSA does not preempt.”

Additionally, a dissenting opinion issued from the court disagreed that setbacks and pipeline abandonment are necessarily preempted by federal law. Under the ruling, determining what types or ordinances or regulations may or may not be preempted by federal law must be made on a case-by-case basis.

Amicus Brief of Minnesota, Michigan, Vermont, and Oregon

Pipeline Safety Trust Amicus Brief

Read the 8th Circuit’s decision:
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