(Amy Dalrymple – North Dakota Monitor) – The North Dakota Landowners Association is asking the state Supreme Court to weigh in on questions over property rights and the underground storage of carbon dioxide.
The landowner group filed notice of an appeal Thursday in a lawsuit against the state that could have implications for Summit Carbon Solutions and other energy companies pursuing CO2 storage projects.
The Northwest Landowners Association, the North Dakota Farm Bureau and others argue that state laws regulating the underground storage of carbon dioxide are unconstitutional.
Northeast Judicial District Judge Anthony Swain Benson dismissed the lawsuit in August, but cited mostly procedural issues such as the timing of the claims.
The Northwest Landowners Association raises property rights questions as energy companies target North Dakota’s geology for underground storage of CO2. The questions relate to pore space, or the tiny voids or cavities in underground rock formations, where companies are looking to permanently store CO2 as a way to reduce emissions.
The landowners take issue with a process used by the North Dakota Industrial Commission known as amalgamation, which is used when fewer than 100% of owners agree to lease pore space to companies. The process allows the commission to force nonconsenting owners to participate if at least 60% of the owners are participating.
“This is really just a made-up work for taking property,” the Northwest Landowners said in a news release Thursday.
Attorney General Drew Wrigley, one of three members on the Industrial Commission has said the amalgamation process is only used when a supermajority of owners want to participate in a CO2 project.
“When a pooling order is entered, every impacted landowner receives their equitable share of compensation,” Wrigley said in a statement when the initial lawsuit was dismissed.
The Northwest Landowners Association argues the process does not follow the North Dakota Constitution, which requires property owners to receive “just compensation” as determined by a jury if their private property is taken or damaged for public use. In the case of CO2 storage wells, the Industrial Commission – not a jury – determines the payment.
“Northwest Landowners Association will never stand down when it comes to the Constitution,” Chairman Troy Coons said in a statement Thursday.
Summit Carbon Solutions and other energy companies that are pursuing CO2 storage projects intervened in the case. Summit proposes to build a pipeline across five states to capture CO2 from ethanol plants, calling it the world’s largest carbon capture project.
Summit proposes three underground wells in Oliver and Mercer counties to permanently store the CO2. At least 90% of property owners have voluntarily signed leases with Summit for use of their pore space, the company said during a June hearing.
The storage wells are under consideration by the North Dakota Industrial Commission.
The Northwest Landowners Association successfully challenged a different state law related to pore space, with the North Dakota Supreme Court ruling that one unconstitutional in 2022.
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