In a 2010 report on pipeline risk and local development planning, the federal Office of Pipeline Safety noted that the risks associated with hazardous liquids pipelines are different than the risks of natural gas pipelines. While the report characterized the risk associated with natural gas pipelines as a “primarily acute hazard” that dissipates in the absence of an ignition source, the risk associated with hazardous liquids pipelines is more varied, depending on the composition of commodities being transported.Hazardous liquid pipelines transport a greater variety of products (including petroleum, petroleum products, natural gas liquids, anhydrous ammonia, and carbon dioxide), so the risks of hazardous liquid pipeline releases vary according to the commodity involved. Releases of some commodities transported in hazardous liquid pipelines, such as propane, pose primarily an acute hazard of fire or explosion, similar to natural gas. These commodities have a high vapor pressure and are in liquid form while transported under pressure in a pipeline. However, if they are released from the pipeline, they will convert to gas as the pressure is reduced. Some of these commodities have densities greater than air, so they have a stronger propensity to remain near the ground than natural gas, which disperses more readily. The behavior of these commodities, when released, presents some different challenges for mitigation, compared to other hazardous liquids or natural gas.
The short answer is no, providing that the zoning ordinance is not attempting to regulate matters that are preempted by the Pipeline Safety Act or the safety standards developed by the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration.Congress has expressly preempted state law with respect to pipeline safety in this manner:
Id. at 422.These decisions are consistent with the jurisprudence in other federal District and Circuit Courts with respect to state and local enactments. Safety ordinances and state laws attempting to govern construction, installation, inspection, and depth of interstate natural gas pipelines have been held to be preempted by the PSA’s predecessor statutes, but no court has held that the PSA has preempted local zoning ordinances with respect to hazardous liquids pipelines.
Does state law preempt local government planning and zoning with respect to pipeline and related facility location?
Before addressing specific approaches that have been or could be used to assure compatibility of the routing and siting of pipelines and related facilities to current land uses and future planned development, it is instructive to determine whether pipelines transporting hazardous liquids are subject to the state planning and zoning statutes, or whether local government regulation has been preempted.For example, in Kentucky, KRS 353.500(2) expresses a legislative intent that “governmental responsibility for regulating all aspects of oil and gas exploration, production, development, gathering, and transmission rests with state government” and preempts all other non-state entities from doing so “except as provided in KRS Chapter 100.” The General Assembly adopted this statute in response to an effort by a County Fiscal Court to regulate “gathering lines,” (which are lines running from wellhead to transmission lines) but expressly protected the ability of local governments to act under KRS Chapter 100. The power of local communities to plan for land use and to regulate land use through KRS Chapter 100, including use of land to support transmission lines, is thus expressly preserved in Kentucky in KRS 353.500(2).
Does state law exempt natural gas liquids pipelines and other hazardous liquids pipelines from the jurisdiction of planning commissions and boards of adjustment?
The next inquiry is whether state planning and zoning statutes allow for local regulation of pipelines. Often, zoning laws will provide a limited exemption from planning and zoning for governmental facilities, including public utilities.
In Kentucky, for example, local regulation of some transmission pipelines (i.e. those owned by regulated utilities) is addressed under KRS 100.324, which provides that: 100.324 Public utility facilities excepted -- Review of proposed acquisition, disposition, or change by commission.
KRS 100.324 (1) (Emphasis added).
Following the abandonment of Tennessee pipeline facilities, if the Commission approves the Project, Tennessee indicates that it would complete necessary work to disconnect and transfer the Abandoned Line and associated facilities to Utica Marcellus Texas Pipeline, LLC (UMTP) who would convert the Abandoned Line to natural gas liquids (NGL) products transportation service (UMTP Project). These activities involving future use of the Abandoned Line are not under the FERC’s jurisdiction, and therefore are not subject to the FERC’s review procedures.
What approaches are available under state zoning laws for assuring that pipeline routing is consistent with locally adopted plans and codes?
show proposals for the most desirable, appropriate, economic, and feasible pattern for the general location, character, and extent of the channels, routes, and terminals for transportation facilities for the circulation of persons and goods for specified times as far into the future as is reasonable to foresee. The channels, routes, and terminals may include, without being limited to, all classes of highways or streets, railways, airways, waterways; routings for mass transit trucks, etc.; and terminals for people, goods, or vehicles related to highways, airways, waterways, and railways.
What may a city or county regulate through zoning regulations?
KRS 100.203 is typical of what may be found in other states and allows for the regulation of:
For land “which is used for agricultural purposes,” zoning regulations are often limited to setbacks from roads, buildings in flood plains and flood ways, and mobile homes and other dwellings.
Is a natural gas liquids or other hazardous liquids pipeline a “structure” that can be regulated by planning and zoning?
In determining whether state planning and zoning laws can regulate construction or conversion of hazardous liquids pipelines, attention must be paid to the definitions.
A buried pipeline, being “constructed or made” and having a permanent location in the ground, would fall within the definition of “structure” under Kentucky law.
What types of zoning processes have been adopted in other jurisdictions?
A 2004 Special Report published by the Transportation Research Board of the National Academies, titled Transmission Pipelines and Land Use: A Risk-Informed Approach, Special Report 281, noted that:Most local governments do not address pipeline issues. For those that do, there are few or no standards on which to base zoning ordinances and other development regulations. Some communities that have experienced pipeline incidents are implementing ordinances and other policies to reduce the perceived risks attributable to transmission pipelines, but these proposed ordinances do not appear to be based on a systematic assessment of risks and costs.
Id. at p. 4. https://www.nap.edu/read/11046/chapter/1
The Special Report noted that:Rational land-use decisions that provide appropriate physical separation between people and pipelines could reduce the risk associated with the increasing numbers of people in proximity to transmission pipelines. Possible land-use techniques include, for example, establishing setbacks; regulating or prohibiting certain types of structures (such as schools, hospitals, and apartment buildings) and uses near transmission pipelines; and encouraging, through site and community planning, other types of activities and facilities (e.g., linear parks, recreational paths) within or in the vicinity of pipeline rights-of-way the
The Special Report recommended that the Office of Pipeline Safety “develop risk-informed land use guidance for application by stakeholders. The guidance should address:
In response to the report, the PHMSA in 2007 helped initiate a multi-stakeholder initiative, the Pipelines and Informed
Planning Alliance (PIPA), which produced a guidance document titled Partnering to Further Enhance Pipeline Safety In Communities Through Risk-Informed Land Use Planning: Final Report of Recommended Practices (November 2010). https://pstrust.org/docs/PIPA-Report-Final-20101117.pdf
PIPA’s recommended practices are focused on how to manage new development near existing pipelines rather than on routing of new pipelines so as to minimize adverse impacts on other development, other existing and projected land uses, and natural resources. Similarly, communities such as Austin, Texas have adopted zoning setbacks for new development near hazardous liquids pipelines, but do not have comparable setbacks or standards for routing of new pipelines.
Additionally, the Office of Pipeline Safety has published Building Safe Communities: Pipeline Risk and its Application To Local Development Decisions (October 2010). https://primis.phmsa.dot.gov/comm/publications/PIPA/PIPA-PipelineRiskReport-Final-20101021.pdf
The report notes that:
As additional homes, businesses, and schools are constructed and other development occurs, more people will be living, working, and shopping in the vicinity of transmission pipelines. Similarly, with increasing demand for energy, it is likely that new transmission pipelines will be constructed in areas of existing development. Because of these expected trends, local governments are increasingly required to make decisions concerning land use planning and development in the vicinity of transmission pipelines.
The federal government, along with its state partner agencies, regulates the safe construction, testing, operation, and maintenance of the nation’s transmission pipelines. In addition, federal pipeline safety regulations include targeted regulations for inspecting and managing the integrity of pipeline segments that have the potential to impact populated and developed areas.Permitting and routing of interstate natural gas pipelines are approved by the Federal Energy Regulatory Commission (FERC). State agencies (e.g. Public Utility Commissions) approve the permitting and routing of intrastate natural gas pipelines and hazardous liquid transmission pipelines.
Unfortunately, the assumption that a state agency, such a Public Service or Utility Commission, approves in advance the routing of hazardous liquids transmission pipelines is often mistaken. While some other states, such as Minnesota, have siting requirements for such pipelines, others like Kentucky do not. Thus, in the case of Kentucky, any routing regulation must come from the local government through Chapter 100.
One approach to routing regulation, which has been adopted and applied in Adams County, Colorado, is to require that pipelines obtain a conditional use permit (CUP).
What is a conditional use permit?
“Conditional uses” are those uses which may be allowed within designated zones under certain conditions. A conditional use “is essential to or would promote the public health, safety, or welfare in one (1) or more zones, but which would impair the integrity and character of the zone in which it is located, unless restrictions on location, size, extent, and character of performance are imposed in addition to those imposed in the zoning regulation[.]” Jurisdiction for hearing applications for a conditional use permit often rests with a Board of Zoning Adjustments. Approval may be conditioned on such things such as time limitations, requirements that one or more things be done before the request can be initiated, and conditions of a continuing nature.
On the plus side, the conditional use process is well-understood by communities and developers alike and allows the planning unit to identify in advance which zones may be suitable for the conditional use, and which are not. Conditions may be tailored to address and mitigate the impacts of a particular project in order to make the use compatible with the zone(s) in which it is proposed to be located, addressing concerns including:
Consultation Zones And Pre-Application Consultation
Another approach to local planning and zoning regulation is that of the “consultation zone,” which can be used alone or in conjunction with other zoning provisions. A model ordinance that was developed by PIPA and has been adopted in several communities, creates a “consultation zone” within which, for proposed new land uses and developments, the property developer/owner is be required to initiate consultation with the transmission pipeline operator. The purpose of the consultation is to protect the transmission pipeline by promoting adequate consideration of the potential safety impacts of the proposed land use or property development on the pipeline and to raise awareness of the potential safety impacts of the transmission pipeline on the proposed land use or development so they can be taken into account during planning and design. Partnering to Further Enhance Pipeline Safety In Communities Through Risk-Informed Land Use Planning: Final Report of Recommended Practices (November 2010), pp. 25=26. https://primis.phmsa.dot.gov/comm/publications/PIPA/PIPA-Report-Final-20101117.pdf. Absent site-specific information, a standard consultation zone distance, on either side of the pipeline centerline, of 660 to 1,000 feet is suggested for hazardous liquids transmission pipelines. However, it is recommended that communities develop and utilize site-specific distances for consultation zones, based on the unique characteristics for the pipeline and the area surrounding the pipeline, such as operating pressure, pipe diameter, type of product carried, and local topography. The American Petroleum Institute Recommended Practice (API RP) 1162, Public Awareness Programs for Pipeline Operators, First Edition, December 2003, includes recommendations for collaboration among pipeline operators, property owners/developers and emergency response officials that may be helpful in developing criteria for a planning area. API RP 1162 applies within 660’ of a hazardous liquid pipeline. https://mycommittees.api.org/standards/pipeline/1162%20Links/1162nonprintable.pdf
As an alternative to or in coordination with the use of conditional use permits, a community could amend the zoning code to identify in which zoning classifications a hazardous liquids pipeline is a permitted use and could adopt special conditions. This approach would provide less individualized scrutiny than the conditional use process, since permitted uses with special standards typically require, at most, staff level review and allow staff-level approval.
Another alternative, which has been adopted in Boyle County, Kentucky, is a hybrid of the zoning district and conditional use permitting process. New or converted hazardous liquids pipelines are not allowed in certain zones and are allowed in others provided that a conditional use permit is approved.
A third alternative would be to create a new “hazardous liquids pipeline corridor” zoning classification as a “floating zone,” meaning that it is not attached to a particular property but is a proposed zone that would be overlaid through existing zones and would requiring planning commission and legislative body approval for rezoning in order to allow the proposed pipeline project. The corridor width could either be fixed by regulation or variable. The zoning classification could be limited to “hazardous liquids” or could include “intrastate natural gas pipelines” as well, since neither is subject to FERC jurisdiction with respect to the routing of a pipeline. The classification can be limited to hazardous liquids pipelines, since there is a rational basis for distinguishing the two in terms of the risks posed to land and water resources from the latter as compared to the former.
Setbacks could be required in order to assure compatibility of the proposed pipeline corridor with nearby land uses in such matters as noise, impact on water resources, and impact on nearby land use and development.
While some communities have established firm setbacks of X feet, the better approach would be to establish setbacks on a project-specific basis, using accepted hazard analysis software to identify the area of potential impact in the event of a pipeline spill. The applicant would be required to submit a hazard analysis considering the volume of liquid that might be released (based on flow rates, spill detection time, pipeline shutdown time, and drain down volume), and where the spilled liquid would go (considering overland flow based on flow resistance, seepage and retention in soil, direction and speed of flow, existing drainage systems, flow barriers and fluid properties).
The zoning regulations could identify those resources that could not be within the area of potential impact, such as private, semi-public or public surface or groundwater withdrawals, wellhead protection areas, wetlands, parks, wildlife management areas, cultural or historic resources, areas of unstable geology or geography, and other areas deemed to be incompatible based on the potential for a release of hazardous liquids from a pipeline.
The standards for the new zoning classification could also address many of the issues that are mentioned above in the context of the conditional use process.
Would The Acquisition of Easements For A Contemplated Pipeline Project Qualify As A Nonconforming Use?In many instances, local governments find out about a proposed pipeline construction or conversion proposal only after the company has begun to acquire easements needed for the project. Absent provisions in zoning laws addressing the construction and conversion of hazardous liquids pipelines, the community may feel constrained to adopt such provisions quickly. The acquisition of easements, by itself, does not give the proposed pipeline “non-conforming” status protection against new restrictions on land use. Kentucky’s law is typical in this regard: a “nonconforming use or structure” is defined in KRS 100.111 to mean an activity or a building, sign, structure, or a portion thereof which lawfully existed before the adoption or amendment of the zoning regulation, but which does not conform to all of the regulations contained in the zoning regulation which pertain to the zone in which it is located.
KRS 100.253 is typical of state statutes concerning zoning and pre-existing land uses, and exempts as nonconforming uses only “[t]he lawful use of a building or premises, existing at the time of adoption of any zoning regulations affecting it[.]” The acquisition of an easement in anticipation of potentially constructing a pipeline would not make the use “existing” under Kentucky law, nor under most state laws. As the Court noted in Perkins v. Joint City-Council Planning Commission, 480 S.W.2d 166 (Ky. 1970):
The general rule is that for property to qualify as nonconforming use the use must have been actually demonstrated prior to the zoning ordinance. Mere contemplation of use of the property for a specific purpose is not sufficient to place it in a nonconforming-use status. Smith v. Juillerat, 161 Ohio St. 424, 119 N.E.2d 611 (1954). Nor is the purchase of the property accompanied by an intent to use it for a specific purpose sufficient. Edelstein v. Dade County, Fla. App., 171 So.2d 611 (1965). An exception to the rule recognized by many jurisdictions is where substantial construction has been made on the property or substantial expenses incurred relating directly to the construction prior to the ordinance.
Id. at 168.
Would a pipeline converted from natural gas transmission to natural gas liquids transmission use after the effective date of a county or city zoning ordinance be “grandfathered” as a “nonconforming use?”One question that arises is whether an existing gas pipeline proposed for conversion to hazardous liquids would be protected from subsequently adopted zoning regulation as a “nonconforming use.” To the extent that a pipeline was in existence and being utilized for natural gas (methane) transmission at the time that a zoning ordinance were adopted, the conversion of that gas transmission line to a different and more “intense” use would likely void any nonconforming status.
As noted above, the federal Office of Pipeline Safety 2010 Report on pipeline risk and local development planning noted that the potential consequences to host communities of transportation of hazardous liquids in pipelines are different than those associated with natural gas pipelines.
The discussion in Am.Jur.2d concerning changes in existing nonconforming uses provides useful criteria by which to judge whether a proposed change in use is material. It supports the conclusion that the conversion, product change, and flow reversal proposed in converting a natural gas pipeline to a natural gas liquids pipeline represents a change in use that eliminates the legal nonconforming status of the property use and requires adherence to an ordinance requiring a conditional use permit for new or converted hazardous liquids pipelines:
§ 553 Change in form or kind of use; insubstantial change
A change of use of property eliminates the exemption of a legal nonconforming use from recently enacted zoning ordinances. As a matter of law, when an owner of a nonconforming use modifies that use, the municipality is entitled to terminate the entire nonconforming use. Thus, in order for a nonconforming use of property to retain its lawful character once applicable zoning law changes, it must continue in essentially the same form as when it began.
A proposed change of use, to qualify as a continuation of an existing nonconforming use, must be sufficiently similar to the nonconforming use as not to constitute a new or different use. Although a substantially different use is not permitted, the proposed use need not be identical to the existing use. Slight changes of use are permitted, and a change in use is permissible when it involves nothing more than a conversion from one nonconforming use to a use that is substantially the same as the prior use. For example, a facility providing care for elderly persons with age-related mental illness does not lose its status as a nonconforming use when it changes its function to provide care and treatment for younger residents with mental illnesses.
In deciding whether a change of use is within the scope of the established nonconforming use, consideration may be given to such factors as: (1) the extent to which the use in question reflects the nature and purpose of the preexisting nonconforming use; (2) whether the use at issue is merely a different manner of using the original nonconforming use or whether it constitutes a use that is different in character, nature, and kind; and (3) whether the use will have a substantially different effect on the neighborhood. The degree to which the original nature and purpose of an undertaking remains unchanged largely determines whether there has been a change in the preexisting nonconforming use.
Id.Utilizing these criteria, conversion of a natural gas transmission pipeline to a hazardous liquids pipeline would appear to void the legal nonconforming status of the land use and would require compliance with any ordinance regulating the location or use of land for hazardous liquids transmission by pipeline.
Below is a link to the Boyle County, Kentucky zoning ordinance regarding hazardous liquids pipelines that can provide some guidance to local officials in seeking to plan for and regulate such hazardous liquids pipelines. Boyle County uses a combination of limiting new or repurposed hazardous liquids pipelines to certain zones and requiring a conditional use permit within those zones. The applicable provisions are at pp. 5-45 through 5-47.
U.S. Department of Transportation, Office of Pipeline Safety, Building Safe Communities: Pipeline Risk and its Application to Local Development Decisions, October 2010, p. 7. https://primis.phmsa.dot.gov/comm/publications/PIPA/PIPA-PipelineRiskReport-Final-20101021.pdf
 “Per curiam” decisions are typically short decisions issued in the name of the entire Court rather than specific judges.
 (19) "Public facility" is defined in KRS 100.111(19) to mean “any use of land whether publicly or privately owned for transportation, utilities, or communications, or for the benefit of the general public, including but not limited to libraries, streets, schools, fire or police stations, county buildings, municipal buildings, recreational centers including parks, and cemeteries[.]