North Dakota judge rules in favor of landowners challenging carbon law

A district court judge on Tuesday sided with a landowner group and found a North Dakota law related to underground storage of carbon dioxide to be unconstitutional.

The ruling from Northeast Judicial District Judge Anthony Swain Benson could have implications for the controversial Summit Carbon Solutions pipeline project, which has a carbon dioxide storage permit from the state.

The Northwest Landowners Association in 2023 sued North Dakota and the state Industrial Commission, which approves permits for permanent underground storage of carbon dioxide. The landowner group challenged a state law that requires landowners to allow carbon dioxide storage beneath their property if at least 60 percent of the affected landowners agree to the project.

Benson writes in his order that the state law is unconstitutional because it allows a government-authorized taking of property without an avenue for “just” compensation determined by a jury. In this case, the property is pore space — cavities in underground rock formations where emissions can be trapped.

“The court is basically saying the constitution trumps that law, so that law can’t be enforced,” said Derrick Braaten, attorney for the landowner group.

North Dakota Attorney General Drew Wrigley said late Tuesday his office was beginning to evaluate “possible legal avenues forward.”

“It’s a critically important question, and one where we believe the state, the duly elected state Legislature, properly balanced all of the interests involved and reached an outcome that respects private property rights, but also the needs of an economy moving forward,” Wrigley said.

In the case of Summit, about 92 percent of landowners in the storage area had chosen to participate in the project when the Industrial Commission approved the storage permit last year.

Troy Coons, chair of the Northwest Landowners Association, encouraged companies to move forward by working with landowners to obtain 100 percent voluntary participation in carbon storage projects. When that isn’t possible, eminent domain could be used for projects that have a public benefit, Braaten said.

“Be a good partner. Show us it’s a good project, people will be involved,” Coons said.

Braaten said he believes the judge’s decision voids all orders issued by the Industrial Commission to require the participation of landowners in a carbon storage facility, a process known as amalgamation.

Wrigley said he was still digesting the order late Tuesday and could not comment on potential impacts to project permits.

Benson initially dismissed the landowner group’s lawsuit, citing procedural issues. In August, the North Dakota Supreme Court sent the case back to the district court for another look.

Summit Carbon Solutions and other energy companies with carbon dioxide storage projects in the works intervened in the case in support of North Dakota law. The North Dakota Farm Bureau and other landowners joined the landowner group in the lawsuit.

Braaten said he anticipates the state and Summit will likely appeal to the state Supreme Court.

Meanwhile, Braaten is representing a group of landowners challenging the legality of the permit granted by the Industrial Commission for Summit Carbon Solutions’ carbon storage project. The parties are awaiting a decision from South Central Judicial District Judge Jackson Lofgren in that case.

Summit proposes to transport emissions from ethanol plants in five states via pipeline for permanent storage in North Dakota.

This article was first published by the North Dakota Monitor.