Amicus Curiae Brief — Shelby County, Iowa, et al., Petitioners v. William Couser, et al.

No. 25-419

IN THE

Supreme Court of the United States

_________

SHELBY COUNTY, IOWA, ET AL.,

Petitioners,

v.

WILLIAM COUSER, ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_________

BRIEF FOR AMICUS CURIAE IOWA STATE

ASSOCIATION OF COUNTIES IN SUPPORT OF

PETITIONERS

_________

NOAH HEINZ

Counsel of Record

ALBERT PAK

Pak Heinz PLLC

20 F Street NW, 7th Fl.

Washington, DC 20001

(202) 505-6354

noah.heinz@pakheinz.com

Counsel for Amicus Curiae

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................iiv

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF THE ARGUMENT ......................... 2

ARGUMENT ............................................................. 4

I. This Court Has Rejected Motive-Based

Tests for Preemption in a Wide Range of

Areas. .............................................................. 6

A. Inquiring into Legislative Motive Is

Perilous. ................................................... 6

B. Preemption Case Law Has Excised

Motive-Based Tests. ................................ 8

1.

Preemption cases focus on effects,

not purpose. ......................................... 8

2.

Preemption

cases

addressing

federal “standards” turn on effects,

not purpose. ....................................... 10

C. This Case Presents an Opportunity to

Clarify Virginia Uranium. .................... 12

II. Motive-Based Preemption Tests Create

Practical Problems for Counties. ................. 14

A. There Is No Meaningful Distinction

Between Considering Safety and

Passing an Ordinance with the

Purpose of Promoting Safety. ............... 14

B. The Lower Court’s Motive-Based

Rule Will Produce Practical Problems

for Local Governments. ......................... 16

CONCLUSION ........................................................ 18

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Alexander v. S.C. State Conf. of the NAACP,

602 U.S. 1 (2024) ..................................................... 8

Arizona v. United States,

567 U.S. 387 (2012) ................................................. 9

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ................................................. 9

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ................................................. 9

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist.,

541 U.S. 246 (2004) ........................................... 3, 10

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) .................................. 7

Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992) ....................................... 3, 10, 11

Hughes v. Talen Energy Mktg., LLC,

578 U.S. 150 (2016) ................................................. 9

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ............................................. 2, 9

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................................. 8

Kesler v. Dep’t of Public Safety,

369 U.S. 153 (1962) ................................................. 9

v

Kurns v. Railroad Friction Prods. Corp.,

565 U.S. 625 (2012) ................................................. 9

Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n,

461 U.S. 190 (1983) ..................................... 8, 12, 13

Perez v. Campbell,

402 U.S. 637 (1971) ............................................. 2, 9

Shady Grove Ortho. Assocs., P.A. v. Allstate Ins.,

559 U.S. 393 (2010) ......................................... 2, 6, 7

Virginia Uranium, Inc. v. Warren,

587 U.S. 761 (2019) ..................................... 3, 12, 13

STATUTES

42 U.S.C. § 2021(k) .............................................. 12, 13

49 U.S.C. § 60102(a)(2) .......................................... 3, 11

49 U.S.C. § 60104(c) ........................................... 3, 5, 11

49 U.S.C. § 60104(e) ......................................... 3, 11, 16

Iowa Code § 331.301(1) .............................................. 17

Iowa Code § 335.5(1) .................................................. 14

Iowa Const. art. III, § 39A ......................................... 17

OTHER AUTHORITIES

Jean Strouse, Morgan: American Financier (2000)….4

John F. Manning, Textualism and Legislative

Intent, 91 Va. L. Rev. 419 (2005) ........................... 7

IN THE

Supreme Court of the United States

_________

SHELBY COUNTY, IOWA, ET AL.,

Petitioners,

v.

WILLIAM COUSER, ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_________

BRIEF FOR AMICUS CURIAE IOWA STATE

ASSOCIATION OF COUNTIES IN SUPPORT OF

PETITIONERS

_________

INTEREST OF AMICUS CURIAE1

The Iowa State Association of Counties is a

nonprofit whose members are elected and appointed

county officials from all 99 Iowa counties. Its mission

is to promote effective and responsible county

government for the people of Iowa. Among other

things, the Association advocates on behalf of its

membership regarding issues of importance to county

governmental bodies in Iowa. Iowa counties exercise

broad constitutional and statutory home rule

authority to govern matters of local concern such as

1 All counsel of record were sent notice of intent to file this brief

more than ten days before filing. No counsel for a party authored

any part of this brief. No one other than amicus curiae or its

counsel made any monetary contribution intended to fund the

preparation or submission of this brief.

(1)

2

land use. Expansive federal preemption, especially

when based on motive, threatens counties’ autonomy.

The Association has a strong interest in vindicating

the legitimate policymaking discretion of home rule

counties.

SUMMARY OF THE ARGUMENT

This Court should grant the Petition to state, once

again, that “effect rather than purpose of a state

statute governs pre-emption analysis.” Int’l Paper Co.

v. Ouellette, 479 U.S. 481, 499 (1987). The lower court

hinged preemption on legislative purpose, creating a

circuit split, defying this Court’s warnings against

investigating legislative purpose, and misconstruing

the text of the Pipeline Safety Act.

The Court has long disfavored judicial

interrogation of legislative purpose. “[W]hat matters

is the law the Legislature did enact,” not its reasons.

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.

Co., 559 U.S. 393, 403 (2010). A purpose-based

approach will allow the same substantive rule to

survive preemption in one state, but fail in another,

merely because the challenger produces better

evidence of illicit purpose. Governments always

pursue multiple purposes, making the real purpose

nigh impossible to divine. Cases from the 1800s

through last year echo these weighty concerns.

Preemption case law uniformly examines a law’s

scope and effect, not its purpose. Numerous cases

follow that approach. In Perez v. Campbell, the Court

abandoned “the aberrational doctrine . . . that state

law may frustrate the operation of federal law as long

as the state legislature in passing its law had some

purpose in mind other than one of frustration.” 402

3

U.S. 637, 651-52 (1971). The lower court’s rule returns

to the approach Perez discredited.

Preemption cases that, like this one, turn on a

federal “standard” uniformly look to the scope and

effect of the standard, not its purpose. That was true

in defining emissions standards in Engine

Manufacturers Association v. South Coast Air Quality

Management District, 541 U.S. 246, 252-53 (2004), and

in defining occupational safety and health standards

in Gade v. National Solid Wastes Management

Association, 505 U.S. 88 (1992).

Those cases provide the rule that applies here. The

Secretary of Transportation is authorized to

promulgate

“safety

standards,”

49

U.S.C.

§ 60102(a)(2), which cover specified areas, id., and

expressly do not cover “location or routing,” id.

§ 60104(e). The scope and effect of what the Secretary

may regulate as “safety standards” should inform the

scope of preemption of state-law “safety standards” in

49 U.S.C. § 60104(c). Whatever the answer to that

statutory interpretation question, it surely is not that

anything is a “safety standard” if the government’s

private motivation for promulgating it included a

desire to promote safety—a desire that at least

partially motivates almost all regulation.

One area that stands apart from the Court’s

ordinary preemption jurisprudence is precedent

construing the Atomic Energy Act, which has unusual

text. The Court fractured in Virginia Uranium, Inc. v.

Warren over construing that law. 587 U.S. 761 (2019).

This case is an ideal opportunity to clarify preemption

doctrine, building on the lead opinion in Virginia

Uranium, since it has neither the unusual text nor the

prior precedent that bothered the dissenters.

4

A motive-based preemption test is unworkable for

local governments.

The lower court held that

considering safety does not render an ordinance a

safety standard, but that acting with the purpose of

enhancing safety does render it a safety standard.

There is no meaningful distinction between

considering safety and pursuing the purpose of safety

that counties can follow.

Compounding the unworkability, it is unclear how

a county could cure the illicit purpose of caring about

safety once a court has found for a challenger. The

challenger could always allege that any subsequent

ordinance that is similar is a sham with the real

purpose of promoting safety.

The lower court’s legal test will stifle public debate,

since it encourages local governments to purge

smoking-gun evidence that they want to enhance

safety. It may also shape who is appointed as a

decisionmaker, since someone more honest (or less

careful) will provide more fodder for lawsuits.

Moreover, by making preemption turn on subjective

legislative motive, the lower court’s decision

undermines county home rule authority and invites

federal courts to second-guess local legislative

judgments that lie at the core of our cooperative

federalism.

Finally, the lower court’s rule will

multiply litigation, since challengers will always be

able to accuse counties of caring about safety too much,

which could trigger burdensome discovery into local

officials’ subjective motivations.

ARGUMENT

J.P. Morgan famously said that “a man generally

has two reasons for doing something: a good reason

5

and the real reason.”2 If that is true of every person,

it is doubly true of government bodies. The legislative

process involves input, testimony, commentary, and

advocacy from a wide range of perspectives, each

urging different reasons. At the end of the process,

every legislator, councilmember, board member, and

commissioner has heard many reasons for voting for a

provision and may hold some in their minds that have

never been expressed. That process culminates in the

promulgation of a particular provision of law. Its text

is knowable, but there is no one, primary reason for it,

whether good, bad, ugly, or real.

This Court’s preemption case law has taken that

truth to heart, holding in case-after-case that

preemption does not turn on the motive or real reason

for a law. The real reason cannot preempt a state or

local law or save it from preemption. Rather, what

matters is the effect of the law: its scope, the duties it

imposes, and the results it produces.

The lower court here forgot those lessons. Under

federal law, “[a] State authority may not adopt or

continue in force safety standards for interstate

pipeline

facilities

or

interstate

pipeline

transportation.” 49 U.S.C. § 60104(c). The key

interpretive question in this case is: What makes an

ordinance a “safety standard”? For the lower court,

the governmental body’s “safety purpose” is

dispositive.

Pet. App. 6a.

Applying that test,

Petitioner Counties’ setback, emergency plan, and

abandonment requirements were deemed “safety

standards” not because they actually regulated

pipeline safety, but because, “look[ing] beyond the

2 E.g., Jean Strouse, Morgan: American Financier, at xiii (2000).

6

rationale offered,” the lower court found that the real

reason for them was safety. Pet. App. 8a.

The Court should review that erroneous conclusion.

Only this Court can rein in the Eighth Circuit’s

divergent application of preemption doctrine. If

allowed to stand, the lower court’s rule places counties

in an untenable condition. They can “consider[]

safety,” Pet. App. 9a, but that consideration cannot be

the reason for acting. This provides no genuine

guidance, and may lead counties to truncate

discussions about safety, or to artificially limit their

deliberations. No matter what they do, a company can

always challenge an ordinance as motivated by safety,

even if (as in this case), similar ordinances have

survived challenge.

I. This Court Has Rejected Motive-Based Tests

for Preemption in a Wide Range of Areas.

This Court has long warned of the perils of hinging

a law’s validity on legislative motive. Its preemption

case law even more clearly directs courts to the scope

and effects of law to discern a conflict, rather than to

malleable purposes.

A. Inquiring into Legislative Motive Is

Perilous.

Perhaps the best articulation of the pitfalls of

divining the real reason for a state law comes from

Shady Grove Orthopedic Associates, P.A. v. Allstate

Insurance Co., 559 U.S. 393 (2010). There, Justice

Scalia cautioned that “what matters is the law the

Legislature did enact,” not its reasons. Id. at 403. The

contrary “approach of determining whether state and

federal rules conflict based on the subjective intentions

of the state legislature is an enterprise destined to

7

produce ‘confusion worse confounded.’” Id. at 404

(quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14

(1941)). Such an approach would mean “that one

State’s statute could survive pre-emption . . . while

another State’s identical law would not, merely

because its authors had different aspirations.” Id.

Beyond that, divining the real reason “will often prove

arduous” because “laws further more than one aim”

and the real reason “may be impossible to discern.” Id.

Perhaps worst of all (for Justice Scalia), a court

divining the real reason for a law “would be

condemned to poring through state legislative history”

if it exists. Id. at 405.

There simply is no way for courts to find the real

reason for the passage of a law. There are no

established judicial standards to do so. There is no

agreement on what facts matter, or how deeply to

delve. There is no agreement on whether purpose is a

question of fact for the factfinder, or one of law for the

court. Moreover, there is no reason to think Congress

would care what a local government’s reason for

passing an ordinance is—the same legal rule imposes

the same potentially conflicting obligations and

produces the same potentially conflicting results,

regardless of whether a county cared mostly about

safety or mostly about something else.

This logic is so strong that it abounds throughout

this Court’s cases. No less an authority than Chief

Justice Marshall warned of the perils of a suit

“founded on the allegation that the act is a nullity in

consequence of impure motives which influenced

certain members of the legislature which passed the

law.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 131

(1810). More recent cases endorse this reasoning on

the grounds that a reason that “motivates one

8

legislature to vote for a statute is not necessarily what

motivates scores of others to enact it.” Pacific Gas &

Elec. Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190, 216 (1983). See also John F.

Manning, Textualism and Legislative Intent, 91 Va. L.

Rev. 419, 427-32 (2005).

The Court’s more recent case law has been even

more diligent in expunging motive-based reasoning.

In the Establishment Clause context, the Court

recently overturned the Lemon test, which “called for

an examination of a law’s purposes,” which did not

match the original public meaning of that Clause, and

mired courts in a perilous hunt for motivations.

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 510

(2022). Even in areas where the Court still will

countenance a review for legislative motive, the Court

has raised the standard based on similar concerns.

See, e.g., Alexander v. S.C. State Conf. of the NAACP,

602 U.S. 1, 11 (2024) (holding that the legislature

starts with a “presumption” of good faith when facing

an allegation of racial motive in drawing district lines).

The lower court’s rule stands opposed to these

deep-rooted principles.

B. Preemption Case Law Has Excised

Motive-Based Tests.

Closing the aperture to focus on just preemption

cases, the Court has been even more reluctant to

review state-law motive.

1. Preemption cases focus on effects,

not purpose.

Modern preemption doctrine does not turn on

motive (or even state-law purpose). To the contrary, a

clean sweep of preemption cases in every area has

9

examined the effects of laws rather than their purpose.

See, e.g., Crosby v. Nat’l Foreign Trade Council, 530

U.S. 363 (2000) (foreign affairs); Arizona v. United

States, 567 U.S. 387 (2012) (immigration); Kurns v.

Railroad Friction Prods. Corp., 565 U.S. 625 (2012)

(railroads); Hughes v. Talen Energy Mktg., LLC, 578

U.S. 150 (2016) (energy rates); AT&T Mobility LLC v.

Concepcion, 563 U.S. 333 (2011) (arbitration). To be

sure, the intent of Congress matters in setting the

scope of preemption, but that is an ordinary textual

interpretation question. The purpose of the state (or

local government) does not matter, except to the extent

it dictates the legal effect of the state law (a matter

determined by state law principles in any event).

The Court’s laser focus on effects over purpose is

not accidental but learned from experience. In cases

like Kesler v. Department of Public Safety, 369 U.S.

153 (1962), the Court looked to the purpose of state law

to uphold laws affecting debts arising from car

crashes. These laws conflicted with bankruptcy law,

producing a quagmire. In Perez v. Campbell, the Court

abandoned “the aberrational doctrine of Kesler . . . that

state law may frustrate the operation of federal law as

long as the state legislature in passing its law had

some purpose in mind other than one of frustration.”

402 U.S. 637, 651-52 (1971). This Court has glossed

Perez as standing for the proposition that “effect rather

than purpose of a state statute governs pre-emption

analysis.” Int’l Paper Co. v. Ouellette, 479 U.S. 481,

499 (1987). This principle applies in both directions—

it is just as “aberrational” to find preemption based on

purpose as it is to decline to find preemption. Statelaw purpose should not matter to preemption.

10

2. Preemption cases addressing federal

“standards” turn on effects, not

purpose.

Preemption cases involving federal standards

similarly define the preemptive scope by reference to

the effect of a given standard, not its purpose. For

example, in Engine Manufacturers Association v.

South Coast Air Quality Management District, the

Court construed a “standard relating to the control of

emissions” not as a standard for the purpose of

controlling emissions, but rather as a standard

requiring that a vehicle “not emit more than a certain

amount of a given pollutant,” or that is “equipped with

a certain type of pollution-control device,” or that has

“some other design feature related to the control of

emissions.” 541 U.S. 246, 252-53 (2004).

The same reasoning controlled in Gade v. National

Solid Wastes Management Association, 505 U.S. 88

(1992). There, federal law preempted any state law

that was an occupational safety and health standard.

To determine whether the law at issue was such a

standard, the Court “refused to rely solely on the

legislature’s professed purpose.” Id. at 105. Rather

than the “purpose or purposes of the state law,” the

Court focused on “the effect of the challenged state

action.” Id. at 107. The dispositive question boiled

down to whether the challenged law “directly,

substantially, and specifically regulates occupational

safety and health.” Id. (emphasis added).

This approach to construing the term “standard”

should apply uniformly. A safety standard under the

Pipeline Safety Act should be one that directly,

substantially, and specifically regulates pipeline

safety—not, as the lower court held, one that regulates

11

something else but has the purpose of enhancing

safety.

Applying those principles here, the result should

have been straightforward. The Pipeline Safety Act

empowers the Secretary of Transportation to

“prescribe minimum safety standards for pipeline

transportation and for pipeline facilities.” 49 U.S.C.

§ 60102(a)(2). Such standards “may apply to the

design, installation, inspection, emergency plans and

procedures,

testing,

construction,

extension,

operation, replacement, and maintenance of pipeline

facilities,” 49 U.S.C. § 60102(a)(2), but in no event may

the “Secretary of Transportation [] prescribe the

location or routing of a pipeline facility,” 49 U.S.C.

§ 60104(e). States “may not adopt or continue in force

safety standards for interstate pipeline facilities.” 49

U.S.C. § 60104(c).

The interlocking provisions of the statute make

clear that a “safety standard” under section 60104(c) is

coterminous in scope with the “safety standards” the

Secretary may promulgate under section 60102(a)(2).

To paraphrase Gade, such a standard must “directly,

substantially, and specifically regulate” safety. Gade,

505 U.S. at 107. That rule would make all the sense

in the world, since pipelines should be subject to just

one set of safety standards. That logic makes clear

beyond question that “safety standard” cannot mean

any legal requirement whatsoever with the motive of

enhancing safety—after all, “safety standard” is keyed

to what the Secretary of Transportation can do, and

the Secretary plainly could not simply pass any

regulation he wants that had the subjective purpose of

enhancing safety. At minimum, the Secretary cannot

“prescribe the location or routing of a pipeline facility.”

And there are surely other things, too, that would not

12

count as genuine safety standards (for example, a

regulation of pipeline financing with the purpose of

enhancing safety).

In short, this statute should be read the same as

every other preemption case addressing federal

standards, and should turn on the scope of a “safety

standard.” On one side of the coin is what “safety

standard” means for the Secretary. The other side of

that same coin is what it also means for the counties.

Preemption follows from a conflict between state and

federal law—here, that requires assessing the scope

and effect of state law, and comparing it to the scope

and effect of the federal statutory term “safety

standard” in the full Pipeline Safety Act. The scope

may be fairly debatable in specific cases, but there is

no plausible argument that it hinges on the subjective

motivation of the lawgiver. That straightforward

conclusion is sufficient to reverse the lower court.

C. This Case Presents an Opportunity to

Clarify Virginia Uranium.

Cases construing the Atomic Energy Act present a

possible exception to the otherwise consistent focus on

effects over purposes. The AEA includes unusual

language allowing states to “regulate . . . for purposes

other than protection against radiation.” 42 U.S.C.

§ 2021(k). Construing this language, the Court held

that a California law had an economic purpose

unrelated to radiation, and so survived preemption.

Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 215

(1983). However, its purpose-based holding was

equivocal, since it also warned that the Court “should

not become embroiled in attempting to ascertain

California’s true motive,” and that the purpose only

13

mattered because there was no “actual conflict

between state and federal law.” Id. at 216 & n.28.

This Court attempted to clarify Pacific Gas &

Electric in its recent Virginia Uranium, Inc. v. Warren

case but failed to land upon a rationale that satisfied

a majority of the Court. 587 U.S. 761 (2019). The lead

opinion in Virginia Uranium expounded on the

dangers of motive-based tests. It highlighted “the

costs to cooperative federalism and individual liberty”

from “inquiring into state legislative purpose.” Id. at

775 (plurality). It warned that a motive-based test

would “stifle deliberation in state legislatures and

encourage resort to secrecy and subterfuge.” Id.

Worse, “federal courts would have to allow depositions

of state legislators and governors, and perhaps hale

them into court for cross-examination at trial about

their subjective motivations,” and, in the end, “judges

[could] uphold and strike down materially identical

state regulations based only on the happenstance of

judicial assessments of the ‘true’ intentions lurking

behind them.” Id. at 775-76.

Six justices disagreed.

Justices Ginsburg,

Sotomayor, and Kagan did not join the “discussion of

the perils of inquiring into legislative motive.” Id. at

781 (Ginsburg, J., concurring in the judgment). Chief

Justice Roberts and Justices Breyer and Alito also did

not join, largely based on “the text of the AEA,” which

differs from the text here. Id. at 801 (Roberts, C.J.,

dissenting). The key text for the dissenters was the

Atomic Energy Act’s provision authorizing states “to

regulate activities for purposes other than protection

against radiation hazards.” Id. (quoting 42 U.S.C.

§ 2021(k)). The dissent did not dispute the “difficulties

about inquiring into legislative motive,” but believed

the AEA’s unusual text—which specifically used the

14

word “purposes”—“require[d] such an approach”

notwithstanding the “difficulty of the task.” Id.

This case is a prime opportunity to clarify the

principles from Pacific Gas and Virginia Uranium in

an opinion for the full Court. The text here does not

use the word “purposes,” “motivations,” or anything

similar, removing the key obstacle cited in dissent.

Whatever the merits of a motivation-based preemption

test for statutes that require such a rule in their text,

the Pipeline Safety Act does not. The lower courts

would benefit from a definitive ruling from a majority

of the Court stating plainly that preemption turns on

the scope and effect of state law, not its purpose.

II. Motive-Based Preemption Tests

Practical Problems for Counties.

Create

This Court has rejected motive-based tests for good

reason. Not only are such tests focused on the wrong

object and unworkable for courts, but motive-based

tests also produce unsolvable dilemmas for local

governments.

A. There Is No Meaningful Distinction

Between Considering Safety and

Passing an Ordinance with the Purpose

of Promoting Safety.

The lower court’s distinction between considering

safety and pursuing safety as a purpose is entirely

unworkable. Iowa law requires counties to consider

“safety” in their zoning decisions.

Iowa Code

§ 335.5(1).

Residents, stakeholders, and county

officials obviously care deeply about safety, and safety

concerns will always arise in some way or another

during hearings and deliberations. See, e.g., Pet. 9-10.

Recognizing that fact, the lower court acknowledged

15

that counties may “consider[] safety,” Pet. App. 9a, but

warned that they may not act on that “purpose” in

passing an ordinance. In practice, that is a hopeless

task. Does this mean a local government may hear

about safety (and thus consider it), but, in enacting the

ordinance, must put what it learned out of its mind

(thus, not pursuing safety as a “purpose”)? Is it enough

if most decisionmakers put safety out of their mind?

Does it instead mean a local government must satisfy

a Goldilocks test, considering safety enough to satisfy

Iowa law and allow participation by the community,

but not too much as to stray into preempted territory?

Or is it simply a matter of cleverness—a county can

pass any ordinance for any reason, as long as the

record before it has few enough references to safety?

Considering what Petitioner counties in this case

are supposed to do illustrates the problem. The lower

court already held that their purpose in passing the

challenged ordinance was safety. What should they do

in the future to ensure a new ordinance passes legal

muster? If the rule turned on effects, the answer

would be clear: modify the operative provisions to

eliminate conflict with federal law (which is what

Story County tried to do). But to cure the taint of an

illicit purpose is harder. Would new county officials

need to make the decision, or would it be enough for

the same officials to go through a new process,

promising that this time they did not care as much

about safety? Would it be enough to conduct a study

of some kind, outlining as many non-safety rationales

as possible for each requirement?

The answer cannot simply be “do not regulate

pipelines,” since all agree state and local governments

are the proper regulators for location or routing.

Federal law expressly “does not authorize the

16

Secretary of Transportation to prescribe the location

or routing of a pipeline facility.” 49 U.S.C. § 60104(e).

Only local governments can do that. It would be

strange if, in exercising this traditional authority that

Congress expressly reserved to them, local

governments were required to ignore the normal

criteria they apply to all other zoning decisions.

B. The Lower Court’s Motive-Based Rule

Will Produce Practical Problems for

Local Governments.

A legal test that examines motive will stifle public

debate on vital issues, interfere with local selfgovernment, and multiply litigation.

Although the real reason for an ordinance is in the

mind, it is proven through evidence of what supporters

or county officials said. A challenger with “smoking

gun” evidence has a strong chance of winning, while

one with nothing more than inference will struggle.

For that reason, the inevitable result of a legal test

targeting legislative motive is policing speech. Welladvised counties will make sure that safety does not

come up, or that when it comes up, it is always as “one

consideration” rather than the reason to pass an

ordinance. That outcome is a sad one for local

government. The free exchange of ideas lies at the core

of self-government. It has been celebrated since the

nation’s founding and is protected in state law and the

First Amendment.

The self-censorship of local

government at the behest of the federal courts would

be an ignominious deterioration.

Beyond affecting what local governments say, a

rule policing legislative motives could affect who gains

power in the first place. A crafty commissioner could

succeed where a loudmouth would fail under the lower

17

court’s rule. This danger is particularly acute for home

rule governments like Iowa’s counties. 3 Home rule

was adopted to ensure that local governments that are

closest to citizens can legislate on matters of local

concern. Home rule has always included land use and

community safety. By treating local intent as suspect,

the lower court penalizes the very responsiveness and

accountability that home rule was designed to protect.

No matter what local governments do, a profusion

of litigation awaits if this Court denies certiorari.

Whatever ordinances counties pass, there will always

be something in the record touching on safety.

Pipeline companies will always be able to argue after

the fact that the real motive was safety all along. 4

They will pore through meeting minutes for illicit

motives, interview witnesses to discern a preference

for safety, and seek to depose county officials to discern

their true intent. Acting in the permanent shadow of

litigation is no way for self-government to work.

3 The Iowa Constitution grants counties “home rule power and

authority . . . to determine their local affairs and government.”

Iowa Const. art. III, § 39A. Thus, a county may “exercise any

power and perform any function it deems appropriate . . . to

preserve and improve the peace, safety, health, welfare, comfort,

and convenience of its residents.” Iowa Code § 331.301(1).

4 That problem played out in this very litigation. Story County

originally imposed setbacks based on pipeline diameter and blast

radius, which likely were safety standards. See Pet. App. 4a, 36a40a. After concerns about federal preemption arose, the County

repealed that ordinance and adopted a uniform setback derived

from its longstanding land-division practices. See id. at 40a-44a.

But Summit still argued—successfully—that the safety purpose

of the original ordinance animated the new one. E.g., id. at 7a.

18

CONCLUSION

For the reasons stated above, this Court should

grant the writ of certiorari.

Respectfully submitted,

NOAH HEINZ

Counsel of Record

ALBERT PAK

Pak Heinz PLLC

20 F Street NW, 7th Fl.

Washington, DC 20001

(202) 505-6354

noah.heinz@pakheinz.com

Counsel for Amicus Curiae

November 6, 2025