A North Dakota judge ruled that state infrastructure rules do not trump local zoning and kept Summit Carbon Solutions' route permit in place. He also declared the CO2 storage law unconstitutional.
A North Dakota judge ruled Friday that state rules on where infrastructure such as pipelines can be built do not automatically trump local zoning ordinances. The ruling comes from a case in which a group of landowners and two counties in south-central North Dakota sued the Public Service Commission (PSC) and pipeline developer Summit Carbon Solutions.
Bismarck attorney Derrick Braaten, who represented Emmons County, called the ruling a victory for local government authority and its ability to set rules on how far a pipeline route must be from homes and other buildings, which is known as a setback. "It's really significant because what the judge is saying is that he agrees with the local government that the statute preserves local control and there's still a place for local control," Braaten said.
Braaten said the ruling goes beyond pipelines. The state legislature in 2025 copied the language that had applied to pipelines and used it to give the PSC authority over power lines as well. Preemption of local zoning was an issue during the PSC hearings on the JETx power line, which would run from Jamestown south to Ellendale.
South Central District Court Judge Jackson Lofgren's order says the pipeline route permit the PSC issued to Summit in November 2024 remains in place. However, the court determined that the PSC must resolve the problems identified in the ruling.
A spokesperson for the PSC said Friday that its legal team was reviewing the judge's findings but would need time to determine the agency's next steps. Summit Carbon Solutions did not respond to an email sent Friday afternoon seeking comment.
The Iowa-based company's original plan was to gather carbon emissions from ethanol plants in five states and use a network of pipelines to bring the CO2 to western North Dakota for permanent underground storage. However, it has been unable to obtain a permit for a pipeline through South Dakota to reach North Dakota.
In addition, Lofgren declared a North Dakota law that allowed underground storage unconstitutional, in line with a ruling from another court. An appeal seeking to retain access to some of that storage is still pending before the North Dakota Supreme Court. Summit has developed an alternative plan to use underground storage in Wyoming.
