North Dakota lawsuit calls carbon pipeline into question

The Project Tundra carbon capture project — a public-private partnership involving a 2,500-mile pipeline through parts of the Midwest — suffered a serious setback last week. 

On Tuesday, the Northwest Landowners Association won a court case against the North Dakota Industrial Commission, which had given a permit to developer Summit Carbon Solutions for underground carbon pipeline storage. But the defendants may appeal the district court judge’s decision.

“The carbon sequestration amalgamation laws allow large private developers to use the property of private landowners over their objection and for minuscule compensation, while those same developers rake in billions of dollars a year in federal government subsidies in the form of 45Q tax credits,” Derrick Braaten, lead attorney for the landowners association, said by email.

That means, he said, that “landowners pay taxes for the subsidies the developer receives as its revenue, and then get paid nothing by that same developer.” 

The Project Tundra pipeline would run through North Dakota, Minnesota, South Dakota, Nebraska and Iowa, a map from the American Carbon Alliance shows.

Regulators in North Dakota and Minnesota approved permits for the project last year. The project, which is currently in the final development phase, would if completed incorporate the largest fully permitted carbon capture storage facility in the U.S., located near Center, North Dakota.

But in May 2023, the landowners association had filed a lawsuit against the commission. The association is a nonprofit made up of North Dakota farm and ranch property owners. The commission is composed of Gov. Kelly Armstrong (formerly Gov. Doug Burgum), Attorney General Drew Wrigley and Agriculture Commissioner Doug Goehring.

The association argued in part that the state constitution’s broad protections for property rights (“Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner”) conflict with a law forcing landowners to allow carbon storage under their land if 60% of landowners affected by the project have agreed. 

The district court dismissed the lawsuit in August 2024, granting some of the technical procedural arguments raised by the defendants. 

The plaintiffs appealed, and the state Supreme Court partially reversed the district court’s decision this August, remanding the case back to the district court for a decision on the merits of plaintiffs’ central claim — which the district court has now released. 

Northeast Judicial District Judge Anthony Swain Benson found that the law failed to allow for “just compensation” as usually occurs in cases of eminent domain. 

“This court concludes (the relevant statute) clearly contains a government-authorized physical invasion of an interest in property, and interferes with a landowner’s use and enjoyment of property, including, but not limited to, a landowner’s right to exclude others,” he wrote.

His ruling has broad implications for any pore space, or reservoir, that has been approved by the North Dakota Industrial Commission, according to a statement from the landowners association.

A spokesman for a developer of Project Tundra, the Minnkota Power Cooperative did not respond to a request for comment. The nonprofit electric cooperative based in Grand Forks, North Dakota, runs the Milton R. Young Station, a coal power plant. The project intends to capture carbon from the plant’s emissions and store it deep underground

The North Dakota Industrial Commission did not respond to a request for comment by press time, nor did the Northwest Landowners Association.

Braaten said he has not yet heard of any response to the ruling by the state, but “we will be surprised if they do not take an appeal.”

However, the plaintiffs seem hopeful the judge’s ruling will stand.

“The decision upholds the sanctity of the constitution and the meaning of the takings clause, and requires the government to follow the constitutional requirements for taking private property,” Braaten said.