North Dakota regulators to take up local control in pipeline hearing – Iowa Capital Dispatch

Can local zoning rules trump state pipeline regulations?

That’s the key question North Dakota’s Public Service Commission is taking up.

The PSC left the question hanging earlier this year when it denied Summit Carbon Solutions a permit for its carbon capture pipeline. But it is hearing arguments on the issue at 2 p.m. Thursday.

Steve Leibel of Bismarck is one of the attorneys representing landowners that will be making the argument for local control.

“It is offensive to me, the attitude that these counties need to just shut up and take their medicine. I don’t think that’s what the Legislature intended,” Leibel said.

The hearing will include arguments from Emmons and Burleigh counties that have passed ordinances with tighter restrictions on where the pipeline can run than what is in state regulations.

Summit, which declined to comment on the hearing, will have the opening argument and a rebuttal at the end.

It is not clear if the commissioners will make a decision at the hearing.

Leibel, who represents landowners, said it’s unusual for a state agency like the PSC to make such an interpretation.

“Agencies certainly do some interpretation of statutes and regulations, but they’re really diving into the deep end on something like this, analyzing this,” Leibel said.

The issue is complicated by the fact that Summit needs both a certificate of corridor compatibility and a permit from the PSC. Leibel said those used to be on separate tracks, with the certificate coming first, but now are part of the same hearing process.

Leibel said state law regarding the route permit seems to favor state preemption but he will argue that the certificate language does not.

Attorney Brian Jorde of Domina Law, who represents landowners in multiple states, called state preemption “An unbelievable attack on the concept of local control.”

The PSC cited several reasons for denying the permit, most notably that Summit did not adequately explore alternatives from routing around Bismarck-Mandan.

Summit, with a new plan to give Bismarck a wider berth, is appealing that denial. But first the PSC has decided to take up the zoning issue.

Summit’s project

Summit seeks to build a 2,000-mile pipeline across five states – Iowa, Minnesota, Nebraska, North Dakota and South Dakota. It would capture carbon greenhouse gas emissions from ethanol plants spread across those states and pipe it to North Dakota for underground storage.

Summit says the project will benefit the ethanol industry and the farmers who supply the plants with corn by lowering the carbon intensity score of the plants.

There also are significant federal tax credits for carbon storage as an incentive.

But concerns about pipeline safety, effects on property values and other issues have prompted counties in multiple states to pass ordinances that put strict limitations on where the CO2 pipeline can run.

Preemption in other states

The issue was a significant factor in South Dakota, where the Public Utilities Commission denied Navigator CO2 Ventures a permit for its carbon capture pipeline project. Navigator has since abandoned its project.

South Dakota denied Summit’s permit on the same premise, but Summit has said it still plans to pursue a permit in South Dakota.

In Iowa, Summit has prevailed in lawsuits against counties that have passed strict local ordinances.

Summit says it has 80% of ND route

Summit’s reroute in North Dakota added 12 miles to the pipeline.

Summit on Tuesday announced it had reached voluntary easements for about 80% of the pipeline route.

“Working with the Summit team was fair and mutually beneficial. This partnership is important to us, as it’s a good thing for our land now and in the years to come,” Bruce Speich, a Milnor landowner, said in a news release. “Together, we’re making a big difference for the future of agriculture and energy in North Dakota.”

During PSC hearings, some landowners said they signed a voluntary easement with Summit to avoid an eminent domain battle in court.