The group represented by Bismarck attorney Derrick Braaten on Thursday filed the appeal in Burleigh County District Court, asserting that the North Dakota Industrial Commission withheld information and violated state law in approving the storage permit plan on Dec. 12.
The permanent underground carbon storage sites in western North Dakota are a key piece of Summit’s planned five-state pipeline network capturing greenhouse gas emissions from ethanol plants. Approving the storage wells was one of the last decisions of Gov. Doug Burgum as chair of the Industrial Commission, which also included Attorney General Drew Wrigley and Agriculture Commissioner Doug Goehring.
The unanimous vote by the commission means that landowners who had not signed an agreement with Summit will be forced to allow the carbon storage on their property.
The landowners assert that the Industrial Commission, which includes the state Department of Mineral Resources, illegally refused to disclose information to landowners under North Dakota open records laws. Braaten and his clients were seeking computer-generated models that predict where the carbon dioxide will go when it is pumped underground for permanent storage.
The appeal says former Department of Mineral Resources Director Lynn Helms refused to provide the models before, during and after public hearings on the case in June, shortly before Helms retired.
The order passed by the Industrial Commission said that if any open records requests were not fulfilled, it is because the Braaten Law Firm did not inform the agency that it had not received the records.
“That’s a lie,” Braaten told the North Dakota Monitor.
The appeal said Braaten’s firm was able to obtain the records in November. Braaten contends the computer models aren’t accurate but landowners were not given a chance to dispute that. He said multiple requests for a rehearing were ignored.
Another issue raised in the appeal are the state’s rules on underground storage. Under a process called amalgamation, if 60% of the landowners in a proposed storage area agree to the plan, the state can force the other 40% to comply.
Summit has obtained more than 92% of the pore space lease agreements across all three areas, according to the order approved in December.
After the commission’s Dec. 12 decision, Summit Executive Vice President Wade Boeshans said the permits resulted from “years of rigorous scientific study, engineering design, and input from regulators, landowners, and local leaders.”
Braaten also is representing the Northwest Landowners Association that has a separate lawsuit before the North Dakota Supreme Court on the amalgamation issue that he contends is unconstitutional.
He said a ruling on either that lawsuit or the storage decision appeal should clarify the constitutionality of the rules.
Braaten’s law firm also is representing Emmons County in a separate legal challenge to the state Public Service Commission’s approval of the pipeline route through North Dakota. Emmons County and Burleigh County are challenging the PSC’s interpretation of state law that concluded state zoning rules preempt local ordinances on where pipelines are allowed.
Another group of landowners also is appealing the PSC permit decision.
Braaten said those appeals may be combined into one case.
