By Jeff Beach, North Dakota is on the verge of enabling the permanent storage of millions of tons of carbon dioxide underground. However, an attorney representing landowners claims the process has been unjust and has already begun laying the groundwork for an appeal. The Industrial Commission, composed of Governor Doug Burgum, Attorney General Drew Wrigley, and Agriculture Commissioner Doug Goehring, is set to vote at its Thursday meeting on plans for underground storage wells operated by Summit Carbon Solutions. These wells will receive carbon dioxide from ethanol plants in five Midwest states, including Iowa.

Challenges and Disputes in the Storage Process

Modeling and Compensation Concerns

Attorney Derrick Braaten from Bismarck represents landowners in the sequestration area, which includes part of Morton County. He alleges that the North Dakota Department of Mineral Resources, under the Industrial Commission, failed to provide landowners with a computer-generated model showing how the CO2 would disperse underground. Eventually, he obtained the model from the Energy and Environmental Research Center in Grand Forks. Braaten believes his clients have the right to examine this dispersion model as it determines the number of landowners to be compensated and the amount they will receive. With the help of a petroleum engineering company, he replicated the EERC model but it took 20 days for the computer to generate the report. He doubts the accuracy of the EERC model and thinks it would take two to three months to create a more precise one. His appeal is based on the lack of due process as he and his clients were not provided Summit's model before a June hearing.Former North Dakota Director of Mineral Resources Lynn Helms described the June hearing as "one of the most contentious" he had ever experienced. Since retiring, Braaten is encouraged by the more forthcoming information from his replacement, Nathan Anderson. However, in a November filing with the Industrial Commission, he still requested more time to create a model for his clients. A Summit letter in response argued that further modeling was "an exercise in futility" as the modeling information only provides a "best prediction" of plume migration based on the input variables and no one will know the actual migration until after injection operations begin. Summit will notify the commission if monitoring activities indicate any deviations from the predicted plume migration.

Permitting Challenges and Legal Battles

Summit faces permitting challenges in South Dakota where it was previously denied a permit. In North Dakota, the project also faces legal challenges from the Northwest Landowners Association, represented by Braaten. The association has asked the state Supreme Court to rule on a lawsuit challenging the state's laws covering underground storage as unconstitutional. State law allows for forcing landowners to allow pore space storage if 60% of the affected landowners agree to the storage plan. Summit claims to have about 90% participation in the storage area. The provision of amalgamation does not give landowners the right to appeal in the court system like in the case of eminent domain. Summit is among the energy companies that have intervened in the case.Governor Burgum, during a November Industrial Commission meeting discussion of the lawsuit, emphasized that one landowner should not be able to veto a carbon storage project. Kurt Swenson, who lives south of Beulah and owns land in the sequestration area and is a member of the Northwest Landowners, believes the Industrial Commission's approval of amalgamation and the storage wells "would be consistent with their trampling of property rights." He also highlights that the landowners' main argument is that the state has no right to take pore space. He is frustrated by Summit's lack of willingness to negotiate, a complaint that also arose during pipeline permit hearings.

Economic Benefits and Project Details

Summit estimates the Midwest Carbon Express pipeline project cost at $8.9 billion to connect 57 ethanol plants to the storage wells. If completed, it could sequester 18.5 million metric tons of CO2 annually and take advantage of federal tax credits of $85 per ton of CO2 stored. The ethanol plants, such as Tharaldson Ethanol at Casselton (the only North Dakota plant signed on to the project), would benefit from accessing markets with a low-carbon fuel standard like California.Governor Burgum has been a strong advocate for the Summit project. He shared a stage with Bruce Rastetter (one of the founders of Iowa-based Summit Carbon Solutions) and Harold Hamm (founder of oil company Continental Resources) when Summit announced Continental Resources' investment in the project. While the Summit project is for permanent underground storage, CO2 can also be injected into oil wells to extend well productivity. Burgum is President-elect Donald Trump's nominee to be Interior secretary and chair a new National Energy Council overseeing energy project permitting. In most states, it is the Environmental Protection Agency that permits CO2 storage wells, but North Dakota was the first state to be granted primacy in Class VI injection well permitting.