United States Court of Appeals

For the Eighth Circuit

___________________________

No. 23-3758
___________________________

William Couser; Summit Carbon Solutions, LLC

Plaintiffs - Appellees

v.

Shelby County, Iowa; Shelby County Board of Supervisors; Steve Kenkel, in his
official capacity as a Shelby County Supervisor; Charles Parkhurst, in his official
capacity as a Shelby County Supervisor; Darin Haake, in his official capacity as a
Shelby County Supervisor

Defendants - Appellants

------------------------------

Iowa Farmers Union; Seven Iowa Landowners; Iowa Farm Bureau Federation;
Pipeline Safety Trust

Amici on Behalf of Appellant(s)

American Petroleum Institute; Liquid Energy Pipeline Association

Amici on Behalf of Appellee(s)

___________________________

No. 23-3760
___________________________

William Couser; Summit Carbon Solutions, LLC

Plaintiffs - Appellees
 v.

Story County, Iowa; Story County, Board of Supervisors; Latidah Faisal, in her
official capacity as Story County Supervisor; Linda Murken, in her official
capacity as Story County Supervisor; Lisa Heddens, in her official capacity as
Story County Supervisor

Defendants - Appellants

------------------------------

Iowa Farmers Union; Seven Iowa Landowners; Iowa Farm Bureau Federation;
Pipeline Safety Trust

Amici on Behalf of Appellant(s)

American Petroleum Institute; Liquid Energy Pipeline Association

Amici on Behalf of Appellee(s)

____________

Appeal from United States District Court

for the Southern District of Iowa - Central
____________

Submitted: November 20, 2024

Filed: June 5, 2025
____________

Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges.

____________

BENTON, Circuit Judge.

Summit Carbon Solutions, LLC wants to build an interstate pipeline through

Iowa. Two counties—Shelby and Story—passed ordinances regulating pipelines.
Summit challenges the ordinances as preempted by the federal Pipeline Safety Act

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(PSA) and Iowa law. The district court granted summary judgment, permanently
enjoining the ordinances. Having jurisdiction under §1291, this court affirms.

I.

Summit plans to build a pipeline to transport captured carbon dioxide across

five states, including Iowa. The pipeline would pass through Shelby County and
Story County. Reacting to the plan, the Counties passed pipeline-related ordinances.
Both ordinances impose setback, emergency response plan, and local permit
requirements. See Shelby County, Iowa, Ordinance 2022-4, arts. 8.4, 8.11, 8.3,
8.5, 8.6 (Nov. 11, 2022); Story County, Iowa, Ordinance 311, chs. 86.16(1)(A),
(1)(C), 86.16(1)(D) (May 16, 2023). Shelby County added an abandonment
provision. See Ord. 2022-4, art. 8.12. And Story County added a trenchless
construction requirement. See Ord. 311, ch. 86.16(1)(B).

At the federal level, the PSA regulates hazardous liquid pipelines. Its purpose
is “to provide adequate protection against risks to life and property posed by pipeline
transportation and pipeline facilities.” 49 U.S.C. § 60102(a)(1). It delegates power
to the Secretary of Transportation to “prescribe minimum safety standards for
pipeline transportation and for pipeline facilities.” § 60102(a)(2). The minimum
safety standards “may apply to the design, installation, inspection, emergency plans
and procedures, testing, construction, extension, operation, replacement, and
maintenance of pipeline facilities.” § 60102(a)(2)(B). Within the Department of
Transportation, the Pipeline and Hazardous Materials Safety Administration
(PHMSA) regulates pipeline safety. See 49 C.F.R. pts. 190–99.

The PSA expressly preempts state safety standards: “A state authority may
not adopt or continue in force safety standards for interstate pipeline facilities or
interstate pipeline transportation.” § 60104(c). But it limits the scope of federal
authority over location and routing: “This chapter does not authorize the Secretary
of Transportation to prescribe the location or routing of a pipeline facility.”
§ 60104(e).
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 At the state level, the Iowa Utilities Commission (IUC) (formerly, the Iowa
Utilities Board) grants permits for new pipelines. See Iowa Code § 479B. The IUC
has “the authority to implement certain controls over hazardous liquid pipelines.”
§ 479B.1. “The commission may grant a permit in whole or in part upon terms,
conditions, and restrictions as to location and route as it determines to be just and
proper.” § 479B.9. After a detailed application and lengthy hearing, the IUC granted
Summit a permit to build its pipeline along a specified route.

Summit sought declaratory and injunctive relief that federal and state law
preempted the Counties’ ordinances. In two cases, the district court granted
summary judgment to Summit, permanently enjoining the Counties from enforcing
the ordinances. The Counties appeal.

This court reviews de novo the summary judgments. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “Summary judgment is
proper ‘if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.’” Id., quoting Fed.R.Civ.P.
56(c)(2). This court reviews permanent injunctions for an abuse of discretion.
Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999). “Abuse of discretion
occurs if the district court reaches its conclusion by applying erroneous legal
principles or relying on clearly erroneous factual findings.” Id. “A trial court’s
determination of whether a local ordinance is preempted by state law is a matter of
statutory construction and is thus reviewable for correction of errors at law.” City
of Davenport v. Seymour, 755 N.W.2d 533, 537 (Iowa 2008), citing State v. Tarbox,
739 N.W.2d 850, 852 (Iowa 2007).

II.

Story County passed an ordinance months before it enacted Ordinance 311.

See Story County, Iowa, Ordinance 306 (Oct. 25, 2022). Story County “repealed
and replaced” the previous ordinance so that it would “not survive regardless of any
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determination of the validity of Ordinance No. 311.” The County acknowledges that
the previous ordinance would be preempted. Over Story County’s assertion of
mootness, the district court addressed Summit’s challenge to the repealed ordinance
to “avoid confusion” about whether it “would survive the invalidation of” the
replacement ordinance. “When a law has been amended or repealed, actions seeking
declaratory or injunctive relief for earlier versions are generally moot unless the
problems are capable of repetition yet evading review.” Phelps-Roper v. City of
Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc) (cleaned up) (holding
challenges to earlier versions of an ordinance are moot when “the record does not
support a reasonable expectation that [the local government] will reenact the earlier
versions because the current ordinance was purposefully amended to correspond
with . . . constitutional law”). Because Story County repealed the previous
ordinance, Summit’s challenge to it is moot.

III.

“The Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that
interfere with, or are contrary to, federal law.” Kinley Corp. v. Iowa Utilities Bd.,
999 F.2d 354, 357 (8th Cir. 1993), quoting Hillsborough Cnty. v. Automated Med.
Labs., Inc., 471 U.S. 707, 712 (1985), citing Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1, 211 (1824) (Marshall, C.J.) (cleaned up). “Congress is empowered to pre-empt
state law by so stating in express terms.” Id., quoting Hillsborough Cnty., 471 U.S.
at 713. “Pre-emption fundamentally is a question of congressional intent . . . and
when Congress has made its intent known through explicit statutory language, the
courts’ task is an easy one.” English v. General Elec. Co., 496 U.S. 72, 78–79
(1990), citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299 (1988)
(internal citation omitted).

Under the PSA: “A state authority may not adopt or continue in force safety
standards for interstate pipeline facilities or interstate pipeline transportation.” 49
U.S.C. § 60104(c) (emphasis added). “Congress has expressly stated its intent to
preempt the states from regulating in the area of safety in connection with interstate
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hazardous liquid pipelines.” Kinley, 999 F.2d at 358. “Congress intended to
preclude states from regulating in any manner whatsoever with respect to the safety
of interstate transmission facilities.” ANR Pipeline Co. v. Iowa State Com.
Comm’n, 828 F.2d 465, 470 (8th Cir. 1987) (emphasis added). “This Congressional
grant of exclusive federal regulatory authority precludes state decision-making in
this area altogether and leaves no regulatory room for the state to either establish its
own safety standards or supplement the federal safety standards.” Kinley, 999 F.2d
at 359. 1

The Counties argue that their ordinances are not preempted because they are
not “safety standards.” In Kinley, this court ruled that nominally non-safety
provisions are preempted by federal law if they nevertheless regulate safety. Id.
This court rejected the state’s contention that it prohibited a pipeline due to financial
concerns. Id. Instead, it looked to evidence of the law’s safety purpose—a letter
expressing Iowa’s “strong interest in the safety and integrity of the pipelines.” Id.
Because it regulated pipeline safety, the state’s law was preempted. Id.

The text of the Shelby and Story ordinances focuses on safety. The Shelby
ordinance repeatedly discusses pipeline safety risks. For example, the preamble
states “there are several factors that would influence human safety in the event of a
rupture of such a pipeline.” Ord. 2022-4. When Story County adopted its later-
repealed ordinance, it made clear its ordinance regulated “hazardous materials
pipelines that pose . . . health and safety risks.” It then repealed that ordinance,

1
Contrary to the Counties’ arguments, ANR and Kinley are applicable although
they interpret the Natural Gas Pipeline Safety Act and the Hazardous Liquid Pipeline
Safety Act, respectively. Congress enacted the PSA to combine and recodify these
statutory predecessors “without substantive change.” Pub. L. No. 103-272, 108
Stat. 745, preamble. Congress’s reenactment of the same preemption provision in
the PSA strengthens these cases’ precedential value. See Lorillard v. Pons, 434 U.S.
575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it re-enacts a statute
without change . . . .”) (internal citation omitted).
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replacing it with Ordinance 311, now claiming the new ordinance “doesn’t have to
do with safety.”

Specifically, Summit challenges three provisions of the Shelby ordinance as

preempted by the PSA: setback, emergency plan, and abandonment requirements.
See Ord. 2022-4, arts. 8.4 (“Separation Requirements”), 8.11 (“Emergency
Response and Hazard Mitigation Plans for Hazardous Liquid Pipelines”), 8.12
(“Abandonment, Discontinuance, and Removal of Hazardous Liquid Pipelines”). It
challenges two provisions of the Story ordinance as preempted by the PSA: setback
and emergency plan requirements. See Ord. 311, chs. 86.16(1)(A) (“Setbacks
Required”), (1)(C) (“Emergency Plan”).

A.

Most ardently, the Counties argue the setbacks fall within their traditional
zoning authority.2 According to them, the setbacks are not “safety standards” under
§ 60104(c), and are “location or routing” regulations under § 60104(e).

The first question is: Are the setbacks “safety standards”? The Counties
admit that their setbacks consider safety but argue they are not safety standards.
This court looks beyond the rationale offered to evidence of the law’s purpose. See
generally Kinley, 999 F.2d at 359 (rejecting a non-safety rationale when evidence
did “not support this position”).

Other circuits have assessed whether setbacks, specifically, constitute safety

standards. The Fifth Circuit held that a challenged local setback was not a safety
standard. Texas Midstream Gas Servs. v. City of Grand Prairie, 608 F.3d 200, 212
(5th Cir. 2010). The court observed that the setback “primarily ensures that bulky,

2
The district court found the PSA preempted the Story ordinance’s setbacks.
It did not address whether the PSA preempted the Shelby ordinance’s setbacks,
having found them preempted by Iowa law.

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unsightly, noisy compressor stations do not mar neighborhood aesthetics” while
acknowledging the “requirements affect fire safety.” Id. at 211. But the court
differentiated between an incidental effect and a direct and substantial effect: “A
local rule may incidentally affect safety, so long as the effect is not ‘direct and
substantial.’” Id., quoting English, 496 U.S. at 85, citing Schneidewind, 485 U.S.
at 308 (“Of course, every state statute that has some indirect effect on . . . facilities
of natural gas companies is not pre-empted.”). When an effect “is neither direct nor
substantial,” it “does not undermine Congress’s intent in promulgating the PSA.”
Id., citing English, 496 U.S. at 85. Because the challenged ordinances’ “primary
motivation” was aesthetic and the effect on safety was only “incidental,” the PSA
did not preempt them. Id.

The Fourth Circuit similarly held that a challenged local setback was not a
safety standard. Washington Gas Light Co. v. Prince George’s Cnty. Council, 711
F.3d 412, 421–22 (4th Cir. 2013). The court upheld county zoning plans because
“[a]t their core” the plans were “land use provisions designed to foster residential
and recreational development.” Id. at 421. Relying on Texas Midstream’s
“incidental” distinction, the court concluded any safety concerns “would have been
merely incidental to the overall purpose” which “is insufficient to justify a finding
that the County Zoning Plans were, in fact, safety regulations.” Id. at 421–22, citing
Texas Midstream, 608 F.3d at 211.

This court holds that the Counties’ setbacks are safety standards. They apply
alike to economically developed and remote areas. This blanket application
undercuts aesthetic, land-use, and development rationales. It suggests the effect on
safety is not incidental, but rather the “primary motivation.” Texas Midstream, 608
F.3d at 211. Further, the Shelby ordinance requires larger setbacks from buildings
with vulnerable populations (i.e., “a church, school, nursing home, long-term care
facility, or hospital”). And the Story ordinance mentions similar facilities (i.e.,
“retirement and nursing homes, family homes, schools, childcare homes and centers,
group homes, hospitals . . . .”). The evidence supports that, at their core, the setbacks
regulate safety. Washington Gas, 711 F.3d at 421. Their direct and substantial
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effect on safety undermines Congress’s express “intent to preempt the states from
regulating in the area of safety.” Kinley, 999 F.2d at 358.

This holding does not prohibit local governments from considering safety, nor
prevent them from enacting all zoning ordinances, as the Counties suggest. This
court emphasizes the distinction between safety standards—which the PSA
preempts—and safety considerations—which the PSA does not preempt.

The Counties frame a second question: Do the setbacks regulate “location or

routing” under § 60104(e)? Even if the setbacks were safety standards, the Counties
argue they relate to location and routing, thus outside the PSA’s preemptive scope.
But the PSA does not limit federal authority over all “location or routing,” just the
Secretary’s authority to “prescribe the location or routing of a pipeline facility.” 49
U.S.C. § 60104(e) (emphasis added). “Prescribe” means: “To dictate, ordain, or
direct; to establish authoritatively (as a rule or guideline).” Prescribe, Black’s Law
Dictionary (12th ed. 2024). Congress uses “prescribe” to connote rules, regulations,
standards, and similar directives that are particularized. See, e.g., Chao v. Mallard
Bay Drilling, Inc., 122 S. Ct. 738, 742 (2002) (considering the preemptive scope of
a statute, which provides: “Nothing in this [statute] shall apply to working
conditions of employees with respect to which other Federal agencies . . . exercise
statutory authority to prescribe or enforce standards or regulations affecting
occupational safety and health.”) (emphasis added). “Congress’ enactment of a
provision defining the pre-emptive reach of a statute implies that matters beyond that
reach are not pre-empted.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992)
(“a variant of the familiar principle of expression unius est exclusio alterius”). When
“the federal government has occupied the entire field,” local regulation is preempted
“except the limited powers expressly ceded to the states.” Pac. Gas & Elec. Co. v.
State Energy Res. Conserv’n & Dev. Comm’n, 461 U.S. 190, 212 (1983).

As discussed, Congress expressly preempted the entire field of hazardous

liquid pipeline safety in § 60104(c). See Kinley, 999 F.2d at 359. Section 60104(e)
excepts the limited power to prescribe location or routing. Here, the agency
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(PHMSA) has not dictated the location or route of Summit’s pipeline. True,
PHMSA regulations relate to the pipeline’s location or route. But Congress’s
statutory language expresses its intent: the PHMSA may not adopt safety standards
that prescribe location or routing; it may adopt safety standards that relate to
location or routing. Section 60104(e) does not save the Counties’ setbacks from
preemption.

B.

The Counties argue their emergency plans provisions do not “adopt . . . safety
standards” but require only an “exchange of information.” The Fifth Circuit held
that an analogous federal law preempted a local requirement “to provide specified
procedures and safeguards to warn and protect the general public against the
accidental release” of hazardous gas. Nat. Gas Pipeline Co. of America v. R.R.
Comm’n, 679 F.2d 51, 52 (5th Cir. 1982). The parties there did not dispute that the
law was a “safety regulation” under the PSA’s predecessor. Id. at 53. Today’s PSA
specifically provides that the authority to “prescribe minimum safety standards”
“may apply to . . . emergency plans and procedures.” 49 U.S.C. § 60102(a)(2).

Both Counties’ ordinances require documentation of compliance with

PHMSA regulations. Ord. 311, ch. 86.16(1)(C) (“The plan may be a preliminary or
draft version of an emergency response plan that would meet the requirements of the
federal Pipeline and Hazardous Materials Safety Administration.”); Ord. 2022-4,
art. 8.11 (if the “PHMSA has adopted regulations specifically related to emergency
preparedness, emergency response, and hazard mitigation planning,” the pipeline
company “shall submit . . . documentation of compliance with the PHMSA
regulations.”).

But the Counties also adopt requirements above and beyond those of the
PHMSA. For example, the Shelby ordinance requires “a detailed plan describing
how the Pipeline Company will work with the County’s law enforcement,
emergency management personnel, and first responders in the event of a[n] . . .
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emergency or disaster.” Ord. 2022-4, art. 8.11. The Story ordinance provides: “The
County will determine whether the information in the plan is sufficient for the
County to plan its own emergency response . . . .” Ord. 311, ch. 86.16(1)(C). These
additions require more than an exchange of information; they adopt safety standards.

C.

The Counties read the Shelby ordinance’s abandonment provision as outside

the scope of the PSA. The PSA grants the PHMSA authority to regulate safety “for
pipeline transportation and for pipeline facilities.” 49 U.S.C. § 60102(a)(2). It
defines a “pipeline facility” as “a gas pipeline facility and a hazardous liquid pipeline
facility”; a “‘hazardous liquid pipeline facility’ includes a pipeline, a right of way, a
facility, a building, or equipment used or intended to be used in transporting
hazardous liquid.” §§ 60101(a)(18), (5) (emphasis added). The Counties say that
abandoned pipelines are not “used or intended to be used” for hazardous liquid
transportation, thus beyond the scope of the PHMSA’s authority.

The issue hinges on the meaning of “used.” The Counties’ argument is logical
only if “used” means “presently used.” But the more natural reading of “used” here
includes “past or completed action even when it is placed after the noun it modifies.”
Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 39 (2008)
(comparing, as an example, “baked beans” and “beans baked in the oven”). As a
past participle, “used” could describe a “formerly used” pipeline. In the statutory
context, the addition of “or intended to be used” suggests Congress intended the PSA
to apply more broadly than to pipelines while in use. “[I]ntended to be used” extends
the PSA’s reach to structures with the potential for use, even in the future. More
generally, this court has repeatedly recognized Congress’s intent that the PSA sweep
broadly. See ANR Pipeline Co., 828 F.2d at 470 (“Congress intended to preclude
states from regulating in any manner whatsoever with respect to the safety of
interstate transmission facilities.”).

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 The Shelby ordinance incorporates the PSA’s scope, deeming a pipeline
abandoned “whenever the use of the Hazardous Liquid Pipeline has been
discontinued such that there is no longer regulatory oversight of the Pipeline by
PHMSA.” Ord. 2022-4, art. 8.12. Because PHMSA oversight extends to
abandoned and discontinued pipelines, the provision can never deem a pipeline
abandoned and never become applicable.

***

The PSA preempts the Shelby and Story ordinances’ setback, emergency
response, and abandonment provisions.

IV.

Iowa preemption emanates from its Constitution’s prohibition of county laws

“inconsistent with the laws of the general assembly.” Goodell v. Humboldt Cnty.,
575 N.W.2d 486, 492 (Iowa 1998), quoting Iowa Const. art. III, § 39A. Its
Constitution also grants counties “home rule power and authority . . . to determine
their local affairs and government.” Iowa Const. art. III, § 39A. Implementing
“home rule,” state law provides: “An exercise of a county power is not inconsistent
with a state law unless it is irreconcilable with the state law.” Iowa Code
§ 331.301(4). “A county shall not set standards and requirements which are lower
or less stringent than those imposed by state law, but may set standards and
requirements which are higher or more stringent than those imposed by state law,
unless a state law provides otherwise.” § 331.301(6)(a).

The Counties argue that the district court misapplied Iowa’s “demanding”
conflict preemption standard. Seymour, 755 N.W.2d at 539. They contend that the
“possibility” of compliance with both their ordinances and an IUC-approved
pipeline route is sufficient to hold their ordinances not preempted.

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 But Iowa’s preemption jurisprudence instructs otherwise. “When a state law
merely sets a standard, a local law setting a higher standard would not conflict with
the state law . . . .” Goodell, 575 N.W.2d at 501. However, when “the local
ordinance would prohibit an activity absent compliance with the additional
requirements of local law, even though under state law the activity would be
permitted because it complied with the requirements of state law . . . the local
regulation would be inconsistent with state law and preempted.” Id.

Goodell exemplifies a statutory scheme in the second category. There, the

issue was whether state regulation of animal feeding operations impliedly preempted
a county ordinance requiring permits for livestock facilities. Id. at 502. Under Iowa
law, a state agency had authority to “adopt rules relating to the construction or
operation of animal feeding operations” including “requirements for obtaining
permits.” Id. (internal quotations omitted). The agency’s rules required animal
feeding operations to obtain a state permit to construct and operate. Id. Under the
challenged county ordinance, livestock facilities had to obtain a local permit to
construct or operate, in addition to complying with state regulations. Id.

[A]ssume an operation meets state law requirements, but not the county’s
additional requirements. Under these circumstances, the state rules would
allow construction and operation of the facility, but the county ordinance
would prohibit it because the operation would not have met the additional
requirements of the county’s ordinances.

Id. at 503. Due to this conflict, the ordinance was inconsistent with state law and
preempted. Id. The court’s determination hinged on the possibility that a facility
could comply with state law while not complying with local law, not the possibility
that a facility could comply with both state law and local law.

By urging the possibility-of-complying-with-both approach, the Counties ask

this court to invert Iowa’s preemption analysis. Instead, Goodell instructs asking:
Is it possible that a pipeline company could comply with an IUC-granted permit
while not complying with a County’s ordinance? If this possibility exists, the
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ordinance is inconsistent with state law and thus preempted. Goodell, 575 N.W.2d
at 501.

That possibility exists here. Iowa law gives the IUC “the authority to
implement certain controls over hazardous liquid pipelines . . . to approve the
location and route of hazardous liquid pipelines.” Iowa Code § 479B.1. “The
commission may grant a permit [to construct, maintain, and operate a new pipeline]
in whole or in part upon terms, conditions, and restrictions as to location and route
as it determines to be just and proper.” § 479B.9. The IUC could determine (and
has determined) a pipeline route through Shelby and Story Counties to be just and
proper. The Counties’ ordinances could (and do) prohibit pipeline construction
along that route absent compliance. So, a pipeline company could comply with the
IUC’s permit while not complying with the Counties’ additional restrictions (as in
Summit’s predicament). This possibility makes the ordinances inconsistent with
state law and thus preempted. See Goodell, 575 N.W.2d at 501. In the words of
Goodell, the Shelby and Story ordinances are “additional requirements” that “would
prohibit” building the pipeline “absent compliance,” even though Iowa law would
permit building the pipeline. Id.

The Counties heavily rely on the Seymour case. The court there considered
whether a county’s traffic ordinance was preempted by state traffic regulations.
Seymour, 755 N.W.2d at 537. The challenged county ordinance authorized an
automatic traffic enforcement system. Id. at 536–37. The ordinance imposed civil
penalties on vehicle owners for speeding and traffic-light violations detected by the
system. Id. The state regulations imposed criminal penalties on drivers for various
conduct, including speeding and traffic-light violations. Id. at 539–40. State law
forbade inconsistent local traffic regulation but expressly authorized local
governments to regulate conduct on the roads through additional regulations. Id. at
540. And state law authorized municipalities to establish civil infractions and
provide for enforcement. Id.

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 The court explained: “In order to be ‘irreconcilable,’ the conflict must be
unresolvable short of choosing one enactment over the other.” Id. at 541.
“[W]hether a municipal ordinance is in conflict is . . . determined by . . . whether the
ordinance permits or licenses that which the state prohibits or forbids or vice versa.”
Id. at 542. The laws in question presented “no such bitter choice.” Id. The county’s
ordinance did not prohibit conduct on the roads that the state permitted; rather both
prohibited the same conduct—speeding and traffic-light violations. Finding no
irreconcilable conflict, the Seymour court held that the ordinance was not preempted
by state law. Id. at 545.

The Shelby and Story ordinances do present a “bitter choice.” The ordinances
prohibit what the state permits—building a pipeline along a specified route. Unlike
the state law in Seymour, Iowa law does not expressly cede power to local
governments. Far from it, § 479B grants the IUC “the authority” to grant permits
“in whole or in part” and “as it determines to be just and proper.” Iowa Code
§§ 479B.1, 479B.9. This delegation of power is singular, sweeping, and cedes
nothing to the counties. By Seymour’s logic, Iowa law and the Counties’ ordinances
irreconcilably conflict.

Specifically, Summit challenges the Shelby ordinance’s permitting

requirements as preempted by Iowa Code § 479B. See Ord. 2022-4, arts. 8.3
(“Conditional Use Permits Required”), 8.5 (“Permit Application Requirements for
Pipeline Companies”), 8.6 (“Permit Application Requirements for Property
Owners”). It challenges the Story ordinance’s authorizations and trenchless
construction requirements. See Ord. 311, chs. 86.16(1)(D) (“Authorizations
Required”), (1)(B) (“Critical Natural Resource Area Protections Required”).3

3
Summit also challenges both Counties’ setback requirements as preempted
by Iowa law. Having found their setbacks preempted by the PSA, this court need
not address state law.
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 A.

Regarding pipeline company permitting requirements, the Counties argue the

provisions merely impose higher standards. The Shelby ordinance requires
companies to “submit an Application to the County Zoning Administrator for a
Conditional Use Permit” after petitioning the IUC for a permit. Ord. 2022-4, art.
8.31. See also art. 8.5 (specifying the information pipeline companies must submit
when applying, including details of the pipeline’s proposed location). “[T]he
County Zoning Administrator and the Board of Adjustment shall consider the
Application according to the process and standards set forth in” the ordinance. Art.
8.33. If Shelby County denies the application, it would prohibit a pipeline company
from building in a certain location, even if the IUC permits construction there. That
possibility makes the pipeline company permitting requirements inconsistent with
state law and thus preempted. See Goodell, 575 N.W.2d at 501.

The Story ordinance similarly requires local permits. Its authorizations

requirement prohibits construction until a pipeline company “obtain[s] all required
federal, state, and local permits and any private easements or other land use
permissions.” Ord. 311, ch. 86.16(1)(D). Because of the same possibility—that
Story County would prohibit construction, even if the IUC permits it—the provision
is inconsistent with state law and thus preempted. See Goodell, 575 N.W.2d at 501.

Regarding landowner permitting requirements, the Counties argue the Shelby

ordinance does not prohibit Summit from negotiating with landowners. Rather, they
say it merely requires a permit to execute an agreement. Iowa law requires IUC-
permitted pipeline companies to negotiate in good faith with landowners before
exercising their right of eminent domain. Iowa Code § 6B.2B (an individual acting
with agency approval must “make a good faith effort to negotiate with the owner to
purchase the private property or property interest before filing an application for
condemnation or otherwise proceeding with the condemnation process”); § 479B.16
(a pipeline company with an IUC permit “shall be vested with the right of eminent
domain”). The Shelby ordinance requires property owners contemplating an
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easement agreement to “submit an Application to the County Zoning Administrator
for a Conditional Use Permit” before executing the agreement. Ord. 2022-4, art.
8.32. See also art. 8.6 (specifying the information property owners must submit
when applying, including details of the pipeline’s proposed location). “[T]he
County Zoning Administrator and the Board of Adjustment shall consider the
Application according to the process and standards set forth in” the ordinance. Art.
8.33. If Shelby County denies the application, it would prohibit the negotiated
agreement, even though Iowa law permits—even requires—good faith negotiation.
That possibility makes the landowner permitting requirements inconsistent with
state law and thus preempted. See Goodell, 575 N.W.2d at 501.

B.

The Story ordinance’s trenchless construction requirement fares no better.

The Counties argue the ability to use trenchless construction along the route
approved by the IUC saves the provision. The provision requires trenchless
construction of pipelines in critical natural resource and buffer areas. Ord. 311, ch.
86.16(1)(B). But the IUC’s authority extends “to protect landowners and tenants
from environmental or economic damages which may result from the construction,
operation, or maintenance of a hazardous liquid pipeline.” Iowa Code § 479B.1.
Through its trenchless construction provision, Story County proports to exercise
authority to protect from environmental damages resulting from construction. An
IUC permit could provide alternative protection or construction methods, which the
Shelby ordinance would prohibit. That possibility makes the trenchless construction
requirement inconsistent with state law and thus preempted. See Goodell, 575
N.W.2d at 501.

*******

The judgment in 23-3758 is affirmed. The judgment in 23-3760 is affirmed

but vacated and remanded for modification to the extent it addresses Ordinance 306.

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KELLY, Circuit Judge, concurring in part and dissenting in part.

I concur in the court’s conclusions in Parts II, III.B, and IV, but I write
separately because I disagree that the PSA preempts the setback and abandonment
provisions.

It is undisputed that the PSA grants the federal government the authority to
“prescribe minimum safety standards for pipeline transportation and for pipeline
facilities,” 49 U.S.C. § 60102(a)(2), and that these standards “may apply to the
design, installation, inspection, emergency plans and procedures, testing,
construction, extension, operation, replacement, and maintenance of pipeline
facilities,” id. § 60102(a)(2)(B). And all agree that “[a] State authority may not adopt
or continue in force safety standards for interstate pipeline facilities or interstate
pipeline transportation.” Id. § 60104(c). But the PSA also expressly states that “[t]his
chapter does not authorize the Secretary of Transportation to prescribe the location
or routing of a pipeline facility.” Id. § 60104(e). So which section of the PSA governs
the Counties’ setback provisions?

For purposes of preemption under the PSA, we have limited guidance on what
constitutes a safety standard, as opposed to a safety consideration embedded in a
location proscription. Compare Tex. Midstream Gas Servs., LLC, 608 F.3d at 211
(concluding that the PSA did not preempt city ordinance where “setback requirement
. . . require[d] a greater distance between the compressor station and adjacent
buildings than [federal law] would . . . alone” because the setback requirement’s
“incidental salutary effect on . . . safety d[id] not undermine Congress’s intent in
promulgating the PSA, as it [was] neither direct nor substantial”), and Wash. Gas
Light Co., 711 F.3d at 421–22 (determining that PSA did not preempt county zoning
plans because, “[a]t their core,” the plans were “local land use provisions designed
to foster residential and recreational development” and “[e]ven assuming safety
concerns played some part in the[ir] enactment . . . , those concerns would have been
merely incidental to the overall purpose of the . . . [z]oning [p]lans”), with ANR
Pipeline Co., 828 F.2d at 470–73 (concluding Iowa statute was preempted where it

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expressly “adopt[ed safety] standards identical to the federal standards,”
“interpret[ed] those standards,” and implemented a “hearing, permit, and inspection”
regime allowing the state “to impose safety conditions upon” pipelines). In order for
preemption to apply, the effect on safety must be “direct and substantial.” See Tex.
Midstream Gas Servs., LLC, 608 F.3d at 211 (quoting English, 496 U.S. at 85). But
I am not convinced that the Counties’ setback requirements fall on the side of a
preempted safety standard. True, as the court points out, the setback requirements
apply equally to developed and remote areas, and setback distances may vary based
on the nature of the facility along the pipeline route. But the setback requirements
also fit comfortably within a local land use ordinance. And such ordinances are
typically, and understandably, driven by multiple concerns, including economic,
environmental, and safety. The question is close. But I would conclude the setback
requirements are location and routing standards that, though animated in part by
safety considerations, do not have a “direct and substantial” effect on safety and thus
do not amount to the type of standards that Congress expressly reserved for federal
regulation.

I also disagree that the PSA preempts Shelby County’s abandonment

provision. Section 8.12 of the ordinance defines a hazardous liquid pipeline as
“abandoned” “whenever the use of the . . . Pipeline has been discontinued such that
there is no longer regulatory oversight of the Pipeline by PHMSA.” In my view,
§ 60101(a)(5), which defines “hazardous liquid pipeline facilit[ies]” to include
pipelines that are “used or intended to be used,” does not cover pipelines that have
been abandoned. The dictionary defines “abandoned” as “left to fall into a state of
disuse.” Abandoned, Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/abandoned (last visited May 29, 2025) (emphasis added). And PHMSA
defines “abandoned” as “permanently removed from service.” 49 C.F.R. § 195.2.
Shelby County’s abandonment provision expressly applies only after any pipeline is

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no longer in use (or intended to be used) and federal regulatory governance has
ceased.4 It is, therefore, not expressly preempted.
______________________________

4
Summit points out that one subsection of Shelby County’s abandonment
provision, Section 8.121, requires that it take action prior to a pipeline’s disuse by
notifying the County and anyone affected by the pipeline of its “intent to discontinue
the use of the [p]ipeline.” This may be true, but Summit fails to articulate how this
subsection has a “direct and substantial” effect on safety.
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