2 Lawsuits Against Summit Allowed to Advance; A Third Case Is Pending

Two North Dakota judges have ruled that lawsuits filed by landowners against carbon pipeline company Summit Carbon Solutions can proceed over objections about court procedures.

Several landowners are suing Iowa-based Summit Carbon Solutions, which is attempting to build a network of pipelines across five states. The pipelines would take carbon dioxide emissions captured at ethanol plants to sites in western North Dakota for permanent underground storage. 

Attorneys for Summit had filed motions to dismiss the lawsuits, arguing that not all parties involved were properly notified and that the cases were not filed in the proper court. 

South Central Judicial District Court Judge Pam Nesvig issued her ruling Friday rejecting Summit’s arguments in one case in which landowners are suing Summit and the North Dakota Public Service Commission.

South Central Judicial District Court Judge Jackson Lofgren filed a similar ruling Tuesday in another case in which landowners are suing Summit entities and the North Dakota Industrial Commission. 

The Public Service Commission in November granted Summit a permit for its pipeline route, about 333 miles through southeast and south-central North Dakota. 

The Industrial Commission in December granted permits for underground permanent storage of carbon dioxide in Oliver, Mercer, and Morton counties. 

South Central Judicial District Court Judge David Reich has yet to rule on a motion to dismiss in another case where Burleigh County is suing the North Dakota Public Service Commission and Summit Carbon Solutions. 

Among the issues raised in the PSC cases is that the agency did not give enough consideration to the safety of residents along the pipeline route. The lawsuit also challenges the PSC’s ruling that state zoning rules trump county zoning ordinances on pipelines.

The PSC ruled last year that a 2019 state law gives the state the upper hand on pipeline setbacks — such as how far away the pipeline must be from a residence — after Summit said Emmons and Burleigh had passed unreasonable set ordinances. 

In the Industrial Commission case, landowners contend the state Department of Mineral Resources withheld information about Summit’s models that would predict where the carbon dioxide would move when the gas is pumped underground. The Industrial Commission oversees the Department of Mineral Resources, which recommended approving the storage permits. About 92% of landowners have voluntarily agreed to participate in the storage facility.

In yet another case, the North Dakota Supreme Court heard arguments last month in a challenge to a state law related to underground storage of CO2. 

The Northwest Landowners Association and other landowners contend a state law that can force landowners to take part in an underground CO2 storage project through a process called amalgamation is unconstitutional. Summit Carbon Solutions is taking part in the defense of that law along with the state of North Dakota and the Industrial Commission. An attorney for Minnkota Power, who joined the Industrial Commission in arguing to the Supreme Court, said a small percentage of property owners should not be able to deny a majority the right to develop their property.

Summit’s pipelines are planned to connect 57 ethanol plants, including Tharaldson Ethanol at Casselton, to the underground carbon storage sites.

Summit so far has been denied a permit in South Dakota. It has obtained permits in Iowa and for part of its Minnesota route. Nebraska has no state permitting for carbon pipelines. 

Supporters of the Summit project say it would support the ethanol industry by lowering the carbon intensity score of the ethanol plants, opening up potential sales in low-carbon fuel markets. 

The project would take advantage of federal tax credits promoting carbon sequestration to combat greenhouse gas emissions.

North Dakota Monitor is an affiliate of States Newsroom, the nation’s largest state-focused nonprofit news organization, supported by grants and donations. The Monitor’s editorial decisions are made locally by our team of North Dakota journalists. The Monitor retains full editorial independence.