North Dakota regulators reject permit for Summit CO2 pipeline; Summit says it will reapply

The unanimous vote by the three-member Public Service Commission comes after five public hearings over the course of four months earlier this year that drew large crowds comprised mostly of people who spoke against Summit Carbon Solutions' $4.5 billion Midwest Carbon Express project.

Summit “failed to meet its burden of proof to show that the location, construction, operation and maintenance will produce minimal adverse effects on the environment and on the citizens of North Dakota,” Commission Chair Randy Christmann said.

He indicated that Summit could "start over and reapply" or "appeal to the courts."

Summit in a statement said it "respects the decision by the North Dakota Public Service Commission, and we will revisit our proposal and reapply for our permit." The company initially applied in October 2022.

"We're committed to understanding and incorporating the considerations outlined in the decision. We are confident that our project supports state policies designed to boost key economic sectors: agriculture, ethanol and energy," said the statement provided by Summit Marketing and Communications Director Sabrina Ahmed Zenor.

The company also has been pursuing clearance from regulators in other states where it has encountered opposition, and it faces court battles over the use of some private land for the project. The company might also face a North Dakota investigation into whether the project has foreign investors who are prohibited under new state laws.

The pipeline is to move climate-warming CO2 emissions from dozens of ethanol plants in Nebraska, Iowa, South Dakota, Minnesota and North Dakota through a 2,000-mile pipeline system to western North Dakota's Oliver County for permanent storage underground. Summit has said it hopes to have it operational next year.

The pipeline was also planned to connect to cross a part of 14 counties in Nebraska and connect six ethanol plants to the sequestration site in North Dakota. Late last year, Summit said it had secured easements on more than half of the planned route in Nebraska.

There would have been 320 miles of pipeline in the state under the proposed route that the PSC rejected, along with aboveground facilities including pump stations. The project would have passed through Burleigh, Cass, Dickey, Emmons, Logan, McIntosh, Morton, Oliver, Richland and Sargent counties. The Burleigh portion would have consisted of 41 miles of pipe.

North Dakota is seeking to keep energy production in line with new emissions standards in a number of markets. Gov. Doug Burgum has touted carbon capture projects as a way to do that. His spokesman, Mike Nowatzki, told the Tribune on Friday that "This is a matter between the PSC and the company, and we’ll continue to monitor it as the process plays out."

The Summit project has sparked opposition from some landowners — including some in northern Burleigh County — and others who have concerns about property values, insurance problems and personal safety. Some officials worry the pipeline route less than 2 miles from Bismarck's extraterritorial area at its closest point could impede the city's northward progression. The city of Bismarck and Bismarck Public Schools have passed resolutions opposing the proposed route.

Summit has said it ruled out a route to the south of Bismarck, where the city is not rapidly developing, for several reasons including geography challenges, potential project delays and cost increases, and a desire to head off a Dakota Access-type protest.

Some county governments including Burleigh's have passed ordinances to regulate the pipeline within their borders. Some officials and landowners also publicly urged the PSC to delay a decision on permitting the pipeline route until new federal safety regulations for CO2 pipelines are in place.

The Pipeline and Hazardous Materials Safety Administration is updating rules in the wake of a CO2 pipeline operated by Denbury Gulf Coast Pipelines rupturing in Satartia, Mississippi, in 2020 that resulted in 45 people seeking hospital care.

Summit touts the overall safety record of the thousands of miles of CO2 pipelines that have operated in the U.S. for decades, including in western North Dakota. The company also has said that issues outlined by PHMSA in its Satartia Failure Investigation Report have been factored into the "planning, design, construction and operations" of the Midwest Carbon Express project.

Summit has been working to secure easements from property owners so it can place the pipeline on their land. Some reluctant landowners worry the company will resort to eminent domain — the seizure of private property use, with compensation. The company has filed dozens of eminent domain lawsuits in South Dakota. But it also maintains it strives to come to agreeable terms with landowners, and that most support the project.

The 2023 North Dakota Legislature considered several bills dealing with CO2 pipelines and eminent domain, but most of them failed. 

The Legislature also passed two bills aimed at limiting or stopping foreign countries and companies from owning, developing or having an interest in land in North Dakota. A group of 31 lawmakers earlier this year asked Attorney General Drew Wrigley to investigate the ownership and investors of Summit Carbon Solutions. Summit maintained the lawmakers were "making unfounded accusations" after unsuccessfully targeting the company during the legislative session.

Wrigley in June said the request didn't meet the necessary requirements, in part because the laws didn't take effect until Aug. 1, and because a request needs to be made by a city council or commission, county commission, or a title agent. He did not rule out an investigation in the future, saying that if he received a valid request after the laws took effect he would conduct a review "as required by law."

Burleigh County has been working on drafting a letter to send to Wrigley. State's Attorney Julie Lawyer said she was submitting it Friday.

Summit has said it "is in compliance with North Dakota law."

The PSC decision was made by Christmann, Commissioner Sheri Haugen-Hoffart and Administrative Law Judge Tim Dawson. Dawson late last year was appointed as a substitute decision-maker in the case to replace Commissioner Julie Fedorchak, who recused herself from any siting decisions pertaining to the pipeline. Fedorchak and her husband own land in Oliver County and signed a contract with Summit to store carbon dioxide there.