A short one from the U.S. Court of Appeals for the Eighth Circuit.

In Couser v. Shelby County, No. 23-3758 (June 5, 2025), the court held that local ordinances which were adopted after a pipeline company announced plans to build a project to move carbon dioxide across several states (and presumably designed to make it harder, or impossible, to build the pipeline), were preempted by federal and state statutes. 

That’s it. You preemption/home rule mavens can read the opinion for the details which we won’t go into, except to point out what we think is the heart of the matter: 

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 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.

Slip op. at 8-9.

But we post the case here because it’s another illustration of how questions of power to take often require the lawyers in the case to know a lot about a lot of subjects; here, Supremacy Clause and home rule. 

Couser v. Shelby County, No. 23-3758 (8th Cir. June 5, 2025)