Summit Carbon stopped an Iowa county's pipeline law. South Dakota counties could be next.

Summit Carbon Solutions, a company looking to build a multi-state carbon dioxide pipeline, now likely has a stronger argument against South Dakota counties attempting to block them from building said pipeline on the grounds of "safety."

This likelihood comes after a July 10 ruling by Chief Judge Stephanie Rose in the federal Southern District of Iowa, in which it was ruled that Shelby County attempted to restrict Summit Carbon's pipeline from being built through an ordinance.

Similar to other measures proposed or already adopted by counties in South Dakota, Shelby County's ordinance establishes setbacks ― the minimum distance a pipeline must maintain from urban and other areas ― as well as requirements for pipeline companies to acquire a conditional-use permit from the county and other processes.

However, Rose prohibited Shelby County from enforcing their ordinance through a temporary injunction, in part because the ordinance is preempted by Iowa law and federal regulations.

Rose said the Secretary of Transportation and the United States Pipeline and Hazardous Materials Safety Administration (PHMSA) have authority on pipeline safety provisions. Shelby County's ordinance expressly refers to Summit Carbon's pipeline, in particular, as a safety risk, which was a primary reason for the injunction.

While a ruling made in a federal Iowa court has no direct effect on other states, Neil Fulton, dean of University of South Dakota's School of Law, told Argus Leader the Shelby County case could set a precedent in South Dakota courtrooms.

Fulton explained this is because such rulings, especially when the case at hand is similar in nature to the former, may have enough persuasive value to convince a judge to lean toward the set precedent.

Related: South Dakota landowners call on Noem, lawmakers to pick a side in pipeline battle

There are a few factors that come into play, however. The similarity of the issue, the thoroughness and strength of the judge's reasoning, and even the judge's reputation could all influence whether a ruling has value in other states, Fulton said.

"It might have persuasive, precedential effects for judges in cases with similar kinds of statutes," Fulton said. "If you look at a statute or an ordinance and it's very similar, the likelihood that the ruling gets followed goes up. If it's only a little similar, the likelihood goes down."

Summit Carbon believes it has new ammunition against moratoria and ordinances in South Dakota

When the news broke that Summit Carbon Solutions won the important court case in Iowa, Sabrina Zenor, the company's director of community relations, couldn't stop checking her phone. But it came at a bad time: Zenor was in the middle of managing visitors at a pipeline safety meeting in Sioux Falls that was intentionally low-key.

Summit Carbon believes the ruling could have implications for South Dakota, and Zenor confirmed as much.

Shortly after learning about the good news in Iowa, Argus Leader asked Zenor if such a case could set a precedent in South Dakota.

Without hesitation, Zenor said "yes." She pointed to the federal safety standards created by PHMSA, which the judge cited as a preempting regulation over Shelby County's ordinance, as rules that should also preempt county measures in South Dakota.

Argus Leader reached out to Summit Carbon for clarification on Zenor's comments but did not receive a response.

South Dakota counties anticipate lawsuits over pipeline ordinances

Over the last two years, Summit Carbon has pressed forward with lawsuits against some South Dakota counties that have tried to limit or delay the company's project.

Brown, McPherson and Spink Counties are currently named in separate, ongoing cases after they each imposed temporary moratoriums on issuing permits for carbon dioxide pipelines. The moratoriums were issued, in part, to give county commissioners more time to weigh the takeaways of the projects.

But Summit Carbon has argued in each case that the counties overstepped their boundaries with these moratoriums. One of Summit Carbon's primary arguments is the moratoriums were originally drafted from a public health and safety perspective, which, similar to the Shelby County case, should be preempted by federal regulations.

In all three original complaints against the counties, Summit Carbon's legal counsel wrote, "The moratorium violates and is preempted by the federal Pipeline Safety Act and the Supremacy Clause of the U.S. Constitution because it impermissibly regulates safety aspects of SCS’s planned carbon dioxide pipeline."

Both Brown and Spink County allowed their moratorium to expire on Wednesday, but similar arguments could be made against county ordinances regarding CO2 pipelines.

According to Spink County Board of Commissioners Chair Suzanne Smith, they already have.

"I do expect to be sued over the proposed ordinance we set at the first reading on Tuesday. Well, a Summit rep [sic] did say it will be challenged in court after the reading on Tuesday. But, that's what bullies do when they can't get their way!" Smith wrote in an e-mail to Argus Leader.

Related: Calls for SD special session on pipelines grow, but a two-thirds consensus is a long-shot

Unlike the Shelby County's halted ordinance that outright stated the safety concerns associated with the project ― which contributed to the injunction in the first place ― none of the three South Dakota counties under litigation have references to public health and safety in their own ordinances that would place them under similar judicial critique.

"Some people have put an ordinance in, and they mentioned it's 'a high-volume dangerous gas. It's a safety issue.' Well, we have no control over Control safety. That's all done by the federal government," Doug Fjeldheim, vice-chair of the Brown County Board of Commissioners, told Argus Leader.

Brown County's variant of a pipeline ordinance, which the commission approved on April 25, established a 1,500-foot setback from residential areas, including schools, churches, homes and daycares.

More: Residential distance to CO2 pipeline sliced in new Minnehaha County ordinance

Shelby County, by comparison, had been enforcing a variety of setback distances ― including minimum setbacks of two miles from city limits, half a mile from schools, churches, homes, daycares and other buildings, and 1,000 feet from occupied buildings ― until the July 10 ruling. In her ruling, Judge Rose said this ordinance “would eliminate all or almost all land in Shelby County on which an (Iowa Utilities Board)-approved pipeline could be built.”

Fjeldheim said the commission explicitly created the Brown County ordinance with "economic development" in mind. He said the county has created similar ordinances for CAFOs, or concentrated animal feeding operations.

"Our ordinance doesn't say anything about safety," Fjeldheim said. "Why do we put 1,500-feet on a CAFO? Well, we wouldn't want some guy building his CAFO 50 feet from your house, would we? So, that's why it's in to protect those people. It's not so much that it's about safety."

But that doesn't mean there aren't similar attitudes influencing how ordinances are drafted by some South Dakota county commissioners. Smith said Spink County's pipeline ordinance isn't expressly about safety, but it's an implicit impetus.

"We can't write this up as safety, but that's what it's all about: safety for our residents in the county [and] for their livelihood," Smith said.

But regardless of how the ordinances are worded or the reasons behind their creation, obvious or otherwise, counties in the way of Summit Carbon's pipeline may have to gear up for another legal battle.

"I do believe that when it's all said and done, that Summit Carbon Solutions is going to challenge our ordinance. There's no doubt in my mind that they're going to do that," Fjeldheim said. "Now, how is that going to shake out? That's the million-dollar-question."

Dominik Dausch is the agriculture and environment reporter for the Argus Leader and editor of Farm Forum. Follow him on Twitter and Facebook @DomDNP and send news tips to ddausch@gannett.com.

This article originally appeared on Sioux Falls Argus Leader: More CO2 pipeline legal battles may be on the horizon for SD counties