North Dakota landowners appeal Summit CO2 storage decision

A group of North Dakota landowners is appealing that state’s approval of an underground carbon dioxide storage area for Summit Carbon Solutions, the Iowa company attempting to build the world’s largest CO2 capture and storage project.

The group represented by Bismarck, N.D., attorney Derrick Braaten filed the appeal Thursday in Burleigh County District Court, asserting that the North Dakota Industrial Commission withheld information and violated state law in approving the storage permit plan Dec. 12.

The permanent underground storage sites in western North Dakota are a key piece of Summit’s planned five-state pipeline network capturing greenhouse gas emissions from ethanol plants. Approving the storage wells was one of the last decisions of North Dakota Gov. Doug Burgum as chair of the Industrial Commission, which also included Attorney General Drew Wrigley and Agriculture Commissioner Doug Goehring.

The unanimous vote by the commission means that landowners who had not signed an agreement with Summit will be forced to allow the storage on their property.

The landowners assert that the Industrial Commission, which includes the state Department of Mineral Resources, illegally refused to disclose information to landowners under North Dakota’s open records laws. Braaten and his clients were seeking computer-generated models that predict where the carbon dioxide will go when it is pumped underground for permanent storage.

The appeal says former Department of Mineral Resources Director Lynn Helms refused to provide the models before, during and after public hearings on the case in June, shortly before Helms retired.

The order passed by the Industrial Commission said that if any open records requests were not fulfilled, it is because the Braaten Law Firm did not inform the agency that it had not received the records.

“That’s a lie,” Braaten told the North Dakota Monitor.

The appeal said Braaten’s firm was able to obtain the records in November. Braaten contends the computer models aren’t accurate but landowners were not given a chance to dispute that. He said multiple requests for a rehearing were ignored.

Another issue raised in the appeal are the state’s rules on underground storage. Under a process called amalgamation, if 60 percent of the landowners in a proposed storage area agree to the plan, the state can force the other 40 percent to comply.

Summit has obtained more than 92 percent of the pore space lease agreements across all three areas, according to the order.

After the commission’s Dec. 12 decision, Summit Executive Vice President Wade Boeshans said the permits resulted from “years of rigorous scientific study, engineering design, and input from regulators, landowners and local leaders.”

Braaten also is representing the Northwest Landowners Association that has a separate lawsuit before the North Dakota Supreme Court on the amalgamation issue that he contends is unconstitutional.

He said a ruling on either that lawsuit or the storage decision appeal should clarify the constitutionality of the rules.

Braaten’s law firm also is representing Emmons County in a separate legal challenge to the state Public Service Commission’s approval of the pipeline route through North Dakota. Emmons County and Burleigh County are challenging the commission’s interpretation of state law that concluded state zoning rules preempt local ordinances on where pipelines are allowed.

Another group of landowners also is appealing the permit decision.

Braaten said those appeals may be combined into one case.

This article first appeared in the North Dakota Monitor.