(Bismarck, ND) — A district court judge has ruled that an underground carbon dioxide storage law in North Dakota is unconstitutional.
On Tuesday, Northeast Judicial District Judge Anthony Swain Benson ruled in favor of the Northwest Landowners Association in a lawsuit filed against the North Dakota State Industrial Commission. The lawsuit, originally filed in 2023, made the argument that the North Dakota state law that required landowners to allow carbon dioxide storage beneath their property if at least 60% of the affect landowners agreed to the project was unconstitutional.
In his order, District Judge Benson says the state law is unconstitutional because it allows government-authorized taking of property without an avenue for “just” compensation to be determined by a jury. In the order, it says “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.” In this case, the property is pore space — cavities in underground rock formations where emissions can be trapped.
The ruling threatens the Summit Carbon Solution’s pipeline project, which involves the building of a pipeline system that captures carbon dioxide from ethanol plants and transports it for safe use or storage. An appeal is expected to be submitted to the Supreme Court, while other legal challenges are pending.