Utility regulators in North Dakota may hold a hearing no sooner than December to consider oral arguments about county ordinances that would restrict the placement of Summit Carbon Solutions’ proposed carbon capture pipeline in that state.

That conflicts with the Ames-based company’s request for the North Dakota Public Service Commission to overrule two county ordinances without soliciting new input from groups that oppose its project.

The commission previously considered arguments about the ordinances in Burleigh and Emmons counties but did not issue a ruling about them when it denied Summit a route permit in August.

The state is crucial to Summit’s proposed five-state pipeline system that would transport captured carbon dioxide emissions from ethanol plants. The company plans to sequester the greenhouse gas in North Dakota.

When the commission denied the permit application, it said the ordinance issue was moot because it was denying the permit for other reasons. However, commissioners indicated they had differing views about the restrictions.

When the commission later agreed to reconsider the company’s permit application with an altered route, Summit renewed its request to overrule the ordinances because they have the potential to significantly affect the pipeline route.

“The issue is purely one of law, and Summit’s renewal motion does not make any new arguments (legal or otherwise) not already made or set forth in its original preemption motion,” wrote Lawrence Bender, an attorney for Summit, in a filing last week. “Accordingly, it is not proper for the commission to allow the intervenors another opportunity to respond in opposition.”

But the commission unanimously decided this week to hold a hearing on the matter — as requested by intervenors in the case — according to a recording of its Monday meeting.

That decision has the potential to elongate the permit reconsideration process, in part because North Dakota’s governor issued an executive order Tuesday to convene a special session of the state’s legislature.

The session is meant to address the North Dakota Supreme Court’s recent decision to void parts of a budget bill, which could affect government services.

That session is expected to last a week, but there are now restrictions on reserving space for all of November in the North Dakota State Capitol, where the Public Service Commission typically operates, said Victor Schock, director of public utilities for the commission.

He expects the hearing to be held no sooner than December.

A ‘very clear law’

The ordinances set minimum distances a pipeline can be placed from cities, houses, livestock facilities and other sites. Summit has argued that the ordinances are so restrictive that its pipeline system could not pass through the counties, but opponents of Summit’s route say that is an exaggeration.

North Dakota law says a gas or liquid pipeline permit “supersedes and preempts any local land use or zoning regulations,” with an exception for road-use agreements.

Randy Christmann, the chair of the commission, has called it a “very clear law.” But opponents of the pipeline route argue that other parts of the law — and the intent of legislators who adopted them — give counties a right to restrict the pipelines.

Commissioner Sheri Haugen-Hoffart has indicated she wants evidence that Summit has tried to work with counties to comply with their ordinances before ruling on the matter.

It’s unclear when the commission will decide the issue. It’s also unclear when it will schedule further evidentiary hearings for its reconsideration of Summit’s permit request.

Summit had requested a single hearing, but the commissioners have signaled more might be necessary.

Commission asks Summit for info

On Tuesday, the commission issued a formal request to Summit for more information about the changes to its route. The commissioners seek, among other information:

• Detailed maps of the pipeline route where it has changed.
• What the company has done to address the concerns of landowners.
• Evidence that the pipeline does not pass through areas prone to landslides.
• A thorough analysis of an alternate route around Bismarck, where there has been resistance to the original route because of its potential to affect urban development.
• A list of newly affected landowners and parcels.
• The percentage of land easements that have been obtained by the company in each county.

Some of the requested information is due within two weeks. Schock said the information is necessary to decide how the reconsideration process will proceed. State law does not prescribe the process or dictate a deadline for its completion.

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