The Greene County supervisors were in consensus that the county should contribute $500 to the Iowa State Association of Counties (ISAC) to pay for an amicus curae (friend of the court) brief in a lawsuit filed by Story and Shelby Counties against Summit Carbon Solution’s Phase 1 pipeline project.
Greene County attorney Thomas Laehn reviewed what led to the request. He said Story and Shelby Counties enacted ordinances with setback restrictions and other regulations that would affect Summit’s proposed Phase 1 liquid carbon dioxide pipeline. Summit sued the two counties, claiming the counties exceeded their authority. The district court agreed with Summit. The counties appealed to the 8th circuit court of appeals, which upheld the district court ruling.
Story and Shelby counties now want to appeal to the U.S. Supreme Court. The Supreme Court hears 80 to 100 cases per year, although it receives many times that number of appeals.
Laehn said ISAC is on record as supporting the two counties in their legal battle. The counties are hiring a law firm in Washington DC to write an amicus curae brief explaining why the Supreme Court should hear the case. The cost of the brief is about $25,000. ISAC is asking all 99 Iowa counties to help cover the legal bill.
According to Laehn, participation by other counties is warranted because the two counties are defending what they believe to be “the traditional regulatory authority of municipal governments, that cities and counties should have the right to enact zoning restrictions on the placement of hazardous liquid pipelines.”
The counties believe the Summit and the federal government are overstepping their authority in refusing to acknowledge their zoning ordinances.
“ISAC is taking the position that we all have a stake in the outcome of this fight. We all have an interest in the Supreme Court taking this appeal and overturning the decisions of the 8th circuit and the district court,” Laehn continues.
Board chair John Muir pointed out that the Supreme Court could agree with the lower courts and Summit. He said he was unsure where Greene County should be in its involvement with the case.
“There’s no certain thing,” supervisor Peter Bardole said, “but as a county, we like to be able to set our own zoning.”
“Our thoughts are in line legally. I think we should support them. Five hundred dollars is a small price to pay if we have any chance of getting it to the Supreme Court,” supervisor Dan Benitz said.
“This really is a dispute about federal regulation,” Laehn said. He clarified that the argument is whether regulations of hazardous liquid pipelines set by Congress preclude any local government rules. Summit claims they do. ISAC claims laws passed by Congress were not intended to preempt local regulation.
There is little chance the Supreme Court will hear the case.
“We’re watching the fight. We care about the fight, but we haven’t invested anything in the fight yet. For that amount of money to represent our constituents, and ourselves… We’ve done everything but continue any money toward it. This amount through ISAC is not monumental,” Muir said.
He added “that between our constituents and ourselves, we do have a dog in the fight.”
County engineer Wade Weiss is on the ISAC board of directors. He said he was the one who made the motion at the board meeting to ask counties to contribute to the cost of the brief. “We have these issues that come up that potentially could affect all of Iowa… ISAC was going to proceed with this, but I didn’t think it was fair that not every county had the opportunity to buy in on it.”
He reminded the supervisors that contributing to cases in which a county is not directly involved in litigation is not new. The matter was on the agenda for discussion. Approval of the $500 contribution will be on the board’s Nov. 10 meeting.
