(Shelby Co) The Shelby County Board of Supervisors met in closed session Tuesday with attorneys from Ahlers & Cooney to discuss options for further legal review after the recent federal Eighth Circuit Court of Appeals ruling that Shelby County’s pipeline zoning setbacks are preempted by state and federal law.
Bryce Schaben, the Chairman of the Shelby County Board of Supervisors, said “We are extremely disappointed in the three-judge panel’s ruling that local zoning setbacks are preempted by federal safety standards. Other federal appellate courts have not ruled that way and the federal Pipeline Hazardous Materials Safety Administration (PHMSA) has repeatedly said that all levels of government have a role to play in safeguarding the public from these hazardous pipelines.”
Vice Chair Charles Parkhurst agreed, “The panel’s ruling is problematic for several reasons. For one thing, the ruling means federal courts likely must inquire into the motives of local officials and whether they were ‘too concerned’ with safety when making zoning decisions. But Iowa’s zoning law requires every County to consider safety when designing zoning ordinances. In addition, we are also concerned with economic development, housing, city growth, and property tax values. For the panel to treat the ordinance as only having a safety intent is not accurate.”
Supervisor Mike Kolbe expressed concern about how the county is supposed to proceed if the ruling is allowed to remain in place. “The two judges who determined our ordinance is preempted have put us in an unworkable position from the standpoint of local ordinances as Judge Kelly’s dissent pointed out. However, the opinion also casts doubt on the Iowa Utilities Commission’s authority to consider safety when approving a pipeline route at the state level. Congress clearly never intended for federal safety jurisdiction to usurp local routing authority, and just as clearly important decisions about where local infrastructure gets built should not be made by bureaucrats in Washington D.C.”
Ultimately, the Shelby County Supervisors supported seeking rehearing of the case from the full Eight Circuit Court of Appeals. “We think the full court will ultimately agree with Judge Kelly and help fashion a more workable solution for county governments.”
