No pipeline ordinance action taken

After lengthy discussions, the Montgomery County Board of Supervisors again declined to pass an ordinance regarding the Summit Carbon Pipeline project.
The supervisors opened the discussion with comments via email from attorney Tim Whipple of Ahlers & Cooney, who drafted an ordinance for the county regarding the pipeline a few years ago. Whipple’s comments indicated there were reasons to adopt an ordinance, but there were also reasons not to.
“On the one hand, if you wait until after the state issues a permit, you will have trouble enforcing a new ordinance because the pipeline company will say you changed the rules on them after the fact. That would be a strong argument, and that’s why it’s a reason to consider adopting your ordinance now. On the other hand, if you adopt the ordinance now, the pipeline company will almost certainly sue you immediately and will point to the adverse ruling on the preliminary injunction against Shelby County issued by Judge Rose. Shelby is appealing that ruling,” Whipple said. “You will have to spend money defending the lawsuit, and while it is ongoing, you probably won’t be able to enforce the ordinance. These are reasons not to adopt one now. Ultimately, your zoning ordinance is drafted like all other counties’ zoning ordinances, so there is good argument that someone already needs a permit to build what is clearly an industrial project in an agricultural zone in your county. But like other counties, your current ordinance almost certainly doesn’t have specific setbacks in it for pipelines. In this scenario, such setbacks would have to be imposed by the Board of Adjustment as conditions on a permit. This does not make most landowners very confident, and some counties do not trust the Zoning Board of Adjustment with this decision.”
Supervisor Mark Peterson then spoke before the crowd in attendance, citing his frustrations with many entities for the position the county had been placed in.
“First of all, shame on the federal government for spending our money on this boondoggle. I have been against it from day one, and I will continue to be against it. Also, and it sounds like maybe this is going to change, but if it doesn’t, shame on PHMSA for not coming up with new regulations regarding this pipeline. Shame on the state for allowing eminent domain to be used for this project,” Peterson said. “To me, storing this carbon underground is one earthquake away from, I’ll soften the phrase of what most of us would know, I’ll call it pooping in your own nest. And that’s my opinion and my concern on my farm. Our house is a mile and three eighths from where it appears the pipeline is going to be. Am I comfortable with that? No. But there’s a lot of you a lot closer than that.”
The supervisors then heard comments from Montgomery County Attorney Drew Swanson, who gave an update on legal proceedings. 
“Although all in different stages of litigation, a number of other counties are involved in lawsuits over pipeline ordinances, and a number of residents across the state are involved in lawsuits over survey access. Unfortunately, this continues to be the trend. For example, Bremer County was most recently sued in early November over its two ordinances. One passed in February 2023, covering largely the same topics as Shelby County’s, and one passed in September of 2024, imposing a county-level permit process for surveying. That matter is currently pending …. It is our strictly legal opinion that passing such an ordinance at this time would likely have two main effects. Number one, as we’ve heard before, it would be unenforceable. Number two, it would create an imminent threat of potential litigation, possibly accompanied by an indeterminable amount of exposure to uncovered financial liability,” advised Swanson. “Please know that I take no pleasure in delivering legal opinions which are less than ideal or even completely unfavorable. However, it is our job to be truthful and to provide unbiased legal advice, which accurately reflects the current state of the law, rather than advice which may be tailored to a particular position. I cannot in good faith advise the county that it is legally appropriate to take action on something which directly contradicts the current state of the applicable law, which in this case is a federal court order.”
Swanson stressed that his analysis in no way should discount the major and legitimate concerns brought forth by citizens of this county over the course of the past several years. However, in consideration of the current legal precedent, county-level, unfortunately, it’s not the appropriate venue for those concerns to be addressed. Rather, at this point in time, the Iowa Utilities Commission and state and federal legislature are the proper entities to call on, as they are currently the primary authority authorized to govern this proposed project.
The supervisors then heard comments from Rick Taylor, who advised that if the county proceeded with an ordinance and was sued, which was likely, it would have coverage through the Iowa Communities Assurance Pool, but at some point in time, as was the case in the other counties currently being sued, the county would be requested to build back the ICAP 15%, for defense funds, if the county wasn’t sued under a non-monetary situation. And If the county loses that suit, and if damages are awarded, if attorney fees are awarded that the county has to pay, ICAP will not pay that. The county would be on its own to pay any awarded attorney fees by the plaintiff. If the county was sued for monetary damages, it gets a little more complicated. If sued for monetary damages, for instance, for lost income or extra expenses, etc., there is a $5,000,000 limit under the county’s public official liability coverage. That $5,000,000 limit excludes any punitive and exemplary damages. So if there’s punitive damages, which are very well likely, there’s no coverage for that, the county is on the hook.
Taylor said he reached out to the ICAP attorneys, who informed Taylor it advised against the county passing an ordinance that has already been found by trial court to be unenforceable, and it could drive a request for punitive damages that are not covered. Shelby County  has already lost at the trial court level. Oral arguments on appeal were just heard, and the attorney’s opinion was that they did not go very well for Shelby or Story County. Enacting an ordinance that was found to be invalid at trial court and will likely be the same ruling on appeal. At the very least, Taylor said the ICAP attorney felt Montgomery County may want to wait for a ruling on appeal in the Shelby and Story County cases.
Supervisor Donna Robinson spoke, saying she had reached out to other counties in the Phase One corridor, and none of them are putting an ordinance in place; they are waiting for litigation. Robinson also reached out to Snyder & Associates, who said there were a lot of landowners in the north/south corridor that have signed easements.
“The latest numbers that she had were that 60 to 62 of the appeasements voluntarily have been signed, and then there’s possibly 20 left, So three times the people have gone ahead that have been approached by this, and they have agreed to it. Which tells me there is a silent majority out there that doesn’t come to these meetings. They are agreeing to it, whether it’s because of the monetary conditions. This is not something I’m making up. I agree with Mark, shame on the fact that we’re being put in this position because we’re in a position that we have very little control over. But we’re having to make tough decisions,” said Robinson. “We’re aware of all the things that you’ve been telling us. But we’re in a position that we have to go what we think is right and on the advice of the legal counsel and insurance and all of those matters. And I appreciate the opportunity that we’ve had to talk about this today,” Robinson stated.
Supervisor Randy Cooper also spoke on the subject, stating he was not for this pipeline for the simple reason that he didn’t think any landowner should be told that somebody is absolutely going to go through their farm and tear it up.
“It comes back to the fact that we don’t have the legal authority as a county to implement constraints or ordinances on interstate pipelines and utilities, that’s where this all started,” commented Cooper.
Supervisor’s Chair Mike Olson also agreed that the county had no real options ahead of it.
“Do we have the authority, the legal authority to move forward? Do we have anything to defend? Can we defend ourselves? It doesn’t sound like it. The federal courts have ruled twice. That’s basically where the bar is right now, is that Shelby County’s ordinance is unenforceable and illegal. And there’s been an injunction, a permanent injunction put on them to even use that,” Olson said.
Supervisor Charla Schmid commented that a lot of things Donna Robinson said Schmid had intended to say, but she still wanted to say a few words.
“People keep coming up and saying, we don’t care about people in Montgomery County, and I’m going to tell you, being on this board, every one of these supervisors care about the people in Montgomery County. I’m sorry. In the beginning, when this first came up, I asked, why do we even have to sequester carbon? I didn’t understand that. And Susie McDonald invited me to come, and she took me in her car and showed me where it was going to go through her land. And I did talk to somebody about that. I care, and I believe we all care,” said Schmid. “At this county level, we don’t have any control over whether the pipeline comes through Montgomery County or not. We don’t want this coming through either. I really wish it would just go away. I was kind of jealous of the one over in, you know, Eastern Iowa that they went away. We’ve done the letters, we’ve done the resolutions, and said we’re against eminent domain. I just don’t know financially if it’s a good business decision for the county to actually go ahead, and pass some ordinance and get sued,” advised Schmid.
Olson said that he felt the same as the other supervisors. He didn’t like that the county was in this position.
“This was supposed to be handled by the Iowa Utilities Board Commission, not the county supervisors. But that’s why we have no home rule on the pipeline. That way, we wouldn’t be worried about a board member on our board getting money under the table. We should not even be involved in this because we have no legal authority to do what’s being asked of us, whether it’s surveying or setbacks. We don’t have the authority to enforce that ordinance. So there’s no real use of passing that ordinance until somebody gives us the authority to do that,” Olson explained.
Olson said the supervisors position was to wait until the 8th Circuit court appeals made a ruling. If they ruled in favor of Shelby County, then things changed. If they ruled against them, then there may be another appeal.
“I think it’s fiscally irresponsible to tie us up at this late date and open this county up for litigation and disclosure to a $9 billion company that has a team of attorneys working for them every day, and just to say we did it. Because they could break us if they win, and they probably will get financial settlements for loss of revenue if they win, if they carry the day in court, which so far they have. So that’s one. We’ve talked about this a couple of times. We’ll wait and see what happens with the 8th Circuit Court of Appeals,” Olson stated.
Robinson closed out the meeting saying it was unfortunate that maybe they look at things or we still tend to be on the opposite side of the table, but it’s a matter of everybody doing what they feel is right.

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