North Dakota Public Service Commission approves Summit pipeline permit

The North Dakota Public Service Commission on Friday approved the permit application for Summit Carbon Solutions' multistate carbon dioxide pipeline.

Iowa-based Summit has proposed to build a five-state, $8 billion project that would capture carbon dioxide emissions from 57 ethanol plants and pipe them to west-central North Dakota for permanent storage underground.

The project has been in regulatory limbo for almost two years now, facing local backlash and opposition across every state it would travel through.

Project supporters say it will provide a lifeline to Midwestern corn growers, giving them an opportunity to sell low-carbon ethanol. Some from the state hope the pipeline will one day be extended to North Dakota's oilfields where CO2 can be used in enhanced oil recovery.

Opponents are worried about safety issues associated with the relatively new technology - CO2 can be hazardous in highly concentrated releases - as well as the potential use of eminent domain for the project. Eminent domain is the taking of private property for public use with just compensation.

Summit has secured around 80% of the pipeline route, according to recent filings.

Regulatory fights

In August 2023, the North Dakota PSC turned down Summit's permit application, a rare denial at the generally business-friendly North Dakota state agency. It allowed for a reconsideration of the permit requested by Summit the following month.

A solid chunk of the permitting process since last September was spent with the two sides arguing over the authority of local ordinances.

Burleigh and Emmons counties last year placed restrictions on pipelines carrying hazardous materials within their borders in response to Summit's project. The company sought to have the PSC declare these ordinances preempted and superseded by state authority.

The PSC ultimately sided with the company after months of debate.

Multiple contentious hearings took place this spring during the state permitting process, often with dozens of opponents showing up and voicing there concerns which ranged from safety and land rights, to general dislike of the project and denial of the scientific consensus of climate change - a major factor driving carbon capture initiatives.

There were also fights around whether Summit's CO2 plume model should remain under a protective order and away from the public's eye. A CO2 plume model shows how the gas would spread in the event of a pipeline rupture.

CO2 is heavier than air and can travel close to the ground for extended periods of time in the event of a pipeline rupture. There is no standard potential impact radius for a CO2 leak, according to Kenneth Clarkson, spokesman for the watchdog group Pipeline Safety Trust. In large concentrations it can be hazardous. The federal Pipeline and Hazardous Materials Safety Administration (PHMSA) is in the process of updating its regulations regarding CO2 lines in response to a 2020 rupture in Satartia, Mississippi, on a pipeline operated by oil firm Denbury. The incident caused over 40 people to seek hospital care and led to an evacuation of over 200 people from the rural town.

Summit project proponents have pointed to a broader CO2 pipeline safety record, including a 205-mile CO2 pipeline in western North Dakota from the Great Plains Synfuels Plant that has been operating for two decades. There are about 5,300 miles of CO2 pipelines operating in the U.S. The CO2 pipeline incident rate is historically smaller than natural gas or oil pipelines, though their footprints are 3 million miles and 230,000 miles, respectively.

The company said releasing this information from the plume model risked it being used by bad actors and has pointed to its work with counties on safety issues including its promise to pay for equipment and training. The company has also moved the pipeline's route farther north of the originally proposed route near Bismarck, though it has stayed in roughly the same location to the east of the city.

In May, a prominent Bismarck-area housing developer who has opposed the location of the project testified that he had been given access to Summit's plume model alongside oil industry lobbyists who do not work for Summit. Burleigh County officials who were given access to the plume model as part of emergency response sessions with Summit testified that the model not being public would make doing their job more difficult in the event of an emergency.

Burleigh County twice challenged the protective order. The PSC shot down the challenge both times.

Other aspects of the project have been subject to litigation. Seventeen landowners across the North Dakota part of the pipeline route refused the company access to their land for survey work. Summit filed lawsuits seeking a court order to allow access. The case made its way to the North Dakota Supreme Court which ultimately sided with Summit.

The road ahead

Summit won a permit approval from Iowa regulators in August, though its permit application has been turned down in South Dakota. Summit has said it intends to reapply in South Dakota. It also awaits permit approvals in Minnesota and Nebraska.

The fight over the pipeline is likely not over in North Dakota either.

Emmons County has filed a challenge to the local ordinance decision, though the case has been on hold since April as the PSC permitting process has played out.

Landowners may also challenge the decision in court, according to attorneys.

If Summit pursues eminent domain action against landowners - which it will likely need to in order to build out the pipeline - there could be challenges on that front as well.

Meanwhile, a landowner group is challenging the process by which the state of North Dakota permits CO2 sequestration wells. In order to store CO2, operators need to access large underground areas with small cavities that are porous enough for liquids or gas to flow through. If the owners of 60% of the mineral rights in a storage area voluntarily sign on to a project, then state policy allows for the rest of the storage space to be "amalgamated" or forced into the project with "equitable" compensation. The landowner group argues this is a "taking" and if an operator takes land without a voluntary agreement, then there needs to be eminent domain action which would go before a court.

Summit, along with two utility companies intervened in that case on the side of the state. A North Dakota district court judge ruled in favor of the state in August, mostly ruling that the law had been on the books for too long. The case has been appealed to the North Dakota Supreme Court.

This is a developing story. Check back for updates.

Reach Joey Harris at 701-250-8252 or .

Energy/Environment Reporter