A North Dakota judge ruled Friday that state regulations for infrastructure construction, such as pipelines, do not automatically override local zoning ordinances. The decision, handed down by South Central District Court Judge Jackson Lofgren, is seen as a victory for local government authority by Emmons County attorney Derrick Braaten. The ruling stems from a lawsuit filed by landowners and Emmons and Burleigh counties against the Public Service Commission (PSC) and pipeline developer Summit Carbon Solutions.
Bismarck attorney Derrick Braaten, representing Emmons County, stated the ruling strengthens local governments' ability to set rules, including how far a pipeline route must be from homes and other buildings – known as a setback. Braaten remarked that the judge's agreement "preserves local control and there’s still a place for local control." He also noted the ruling's potential broader implications, as the Legislature in 2025 applied similar language, giving the PSC authority over power lines. The issue of local zoning preemption was raised during PSC hearings for the JETx power line, planned to run from Jamestown to Ellendale.
Despite the ruling, Judge Lofgren's order specifies that the pipeline route permit issued to Summit by the PSC in November 2024 remains valid. However, the court has mandated that the PSC must address several problems identified in the ruling. The PSC's legal team is currently reviewing the judge’s findings and will take time to determine their next steps, a spokesperson for the PSC said Friday. Summit Carbon Solutions did not respond to a request for comment Friday afternoon.
One key issue the PSC must address is better explaining why it believes the pipeline route will not impair public welfare. Attorney Braaten highlighted the judge's clear stance that the state agency can and should consider safety when evaluating a pipeline route's effect on public welfare, despite an argument made by a PSC attorney in July that safety standards are enforced by a federal agency.
The court also found that the PSC did not adequately explain its analysis of an alternate route through southern Burleigh County. Furthermore, regarding a model created by Summit showing how carbon dioxide might disperse in a pipeline rupture, the judge ruled that a redacted version should be made public. If not, the PSC must provide a better explanation for withholding the information, particularly given evidence that Summit had provided some members of the public with access to the model. Finally, the PSC is required to determine whether setback requirements established by Emmons and Burleigh counties were unreasonable. If deemed unreasonable, state rules would then apply.
The future of Summit's carbon pipeline project in North Dakota continues to face uncertainty. The Iowa-based company's original proposal involved collecting carbon emissions from ethanol plants in five states and transporting the CO2 via a pipeline network to western North Dakota for permanent underground storage. However, the company has not yet secured a permit for a pipeline route through South Dakota, which is necessary to reach North Dakota.
In a separate but related development, Judge Lofgren previously ruled that a North Dakota law permitting underground storage was unconstitutional, a finding echoed in a different court. An appeal to retain access to some of that storage is currently pending with the North Dakota Supreme Court. As a contingency, Summit has developed an alternative plan to utilize underground storage facilities in Wyoming.
