Summit wins on local ordinance issue in North Dakota

Summit Carbon Solutions and other pipeline companies scored a victory this week when the North Dakota Public Service Commission decided that state rules preempt local ordinances on pipeline zoning issues.

That decision paves the way for a rehearing on Summit’s application for a pipeline permit in North Dakota, which the state’s commission denied last year.

The proposed pipeline would run through Iowa, Minnesota, Nebraska and South Dakota before ending in North Dakota. Hearings in Iowa have concluded, and the Iowa Utilities Board is now charged with deciding whether the company is eligible for a permit and for eminent domain authority in the state, according to the Iowa Capital Dispatch. Summit has obtained easements for about three-quarters of its over 680-mile route in Iowa.

North Dakota Public Service Commission Chair Randy Christmann said hearings on Summit’s revised application there would be at latest four weeks away.

On local ordinances, Christmann said the state’s law, which was changed in 2019, is clear: “the approval of a route permit for a gas or liquid transmission facility automatically supersedes and preempts local land use or zoning regulations except for road use agreements.”

The three-member commission met in a work session Jan. 26 to discuss the issue and commissioners indicated they would support an order giving state rules preemption over those set by counties and other local governments.

Wednesday’s unanimous vote confirmed the commission’s position.

At a hearing in December, attorneys for Emmons and Burleigh counties in North Dakota argued that local ordinances should take precedence and that pipeline zoning rules passed in those counties are not unduly restrictive.

Summit Carbon Solutions requested a decision on the preemption issue as it continues to seek a permit for the North Dakota portion of its pipeline route.

Before 2019, the law said state rules may supersede local ordinances, if the local ordinances are deemed unreasonably restrictive. “We used to have flexibility on this. That changed in 2019,” Christmann said.

Summit wants to lay about 350 miles of pipe in North Dakota to transport carbon dioxide emissions from ethanol plants in five states to underground storage areas in Mercer and Oliver counties.

Summit calls its project the world’s largest carbon capture and storage project. It says the project will benefit the environment, the ethanol industry and the farmers who grow corn for the ethanol plants.

Summit says it has about 80 percent of the North Dakota pipeline route secured, but some landowners have refused to sign voluntary easements despite being offered payments from Summit. Opponents question the environmental benefits of the pipeline and have voiced concerns about safety and damage to property values and farmland.

Summit could attempt to use the legal power of eminent domain to force landowners to provide right of way easements, which some landowners adamantly oppose.

North Dakota regulators last year denied Summit’s pipeline siting application for that state. Summit has since proposed changes to its route around Bismarck and an appeal is pending before the commission.

Christmann called the case file around the pipeline “enormous,” and said 2,000 pages of filings had been added just in the last eight days. He said staff and commissioners need time to review those filings before more hearings can be set.

“It’s going to take some time. I don’t know how long yet,” Christmann said.

Summit in 2021 said it had planned to begin construction in 2023 and be operational by 2024, but it has yet to obtain the needed pipeline route permits.

Tharaldson Ethanol at Casselton is the only North Dakota plant on the pipeline route. Iowa-based Summit recently announced the addition of 17 ethanol plants — 12 of them in Iowa — owned by POET, based in Sioux Falls, S.D., to the proposed carbon pipeline network.

This article first appeared in the North Dakota Monitor.