North Dakota Judge Strikes Down CO₂ Storage Law as Unconstitutional
Landowners prevail in major property-rights case with sweeping implications for Summit Carbon Solutions and other energy projects
A North Dakota district court judge has ruled that a state law allowing underground carbon dioxide storage beneath private land without unanimous landowner consent violates the state constitution — a decision that could significantly affect the Summit Carbon Solutions project and other energy ventures. The decision was first reported by the North Dakota Monitor.
Judge Anthony Swain Benson of the Northeast Judicial District sided with the Northwest Landowners Association, finding that the 60%-consent statute — which forces remaining landowners to accept CO₂ storage under their property if a majority approves — amounts to an unconstitutional taking of private property without the “just” compensation determined by a jury that the constitution requires.
According to the North Dakota Monitor, the law at issue governs pore space: underground cavities in rock formations that can hold stored carbon dioxide. The landowner group argued that forcing pore-space use without individual compensation undermines core property rights, and the judge agreed.
A Direct Challenge to the State’s CO₂ Storage Framework
In his order, Benson wrote that the statute effectively authorizes the government to take property “without an avenue for ‘just’ compensation.” As a result, he concluded, the law “can’t be enforced,” landowner attorney Derrick Braaten told the Monitor.
The ruling casts immediate uncertainty over Summit Carbon Solutions’ massive regional CO₂ pipeline and storage venture. When North Dakota’s Industrial Commission approved Summit’s storage permit last year, project documents showed about 92% of affected landowners had voluntarily signed on — but not all. The now-struck law provided the mechanism to compel the remaining landowners to participate.
Braaten said the ruling likely voids all Industrial Commission orders requiring mandatory landowner participation through amalgamation.
State Evaluating Next Steps; Appeals Expected
North Dakota Attorney General Drew Wrigley told the Monitor his office is “evaluating possible legal avenues forward,” calling the issue “critically important” and arguing that the Legislature had attempted to balance property rights with the state’s economic needs.
Summit Carbon Solutions and several other energy companies had intervened to defend the law. Braaten said he expects both the state and Summit to appeal the ruling to the North Dakota Supreme Court.
The case has been winding through the judiciary for two years. Benson initially dismissed the suit on procedural grounds, but the state Supreme Court revived it in August and sent it back for reconsideration.
Landowners Urge Voluntary Participation, Not Compulsion
Troy Coons, chair of the Northwest Landowners Association, said companies should aim for 100% voluntary participation when developing carbon storage projects and demonstrate their merits directly to landowners.
“Be a good partner. Show us it’s a good project, people will be involved,” Coons said.
If companies cannot reach full voluntary agreement, Braaten added, they can still pursue eminent domain — but only under the state’s existing processes for projects that serve a public benefit.
Second Major Case Still Pending
The ruling comes as Braaten separately represents another landowner group challenging the legality of the Summit storage permit granted by the Industrial Commission. A decision in that case is pending before South Central Judicial District Judge Jackson Lofgren.
Summit Carbon Solutions proposes to transport CO₂ emissions from ethanol plants across five states — Iowa, Minnesota, South Dakota, Nebraska and North Dakota — and permanently store them underground in North Dakota.
The North Dakota Monitor reports that Tuesday’s decision could reshape the legal landscape for how the state handles CO₂ storage going forward, with significant repercussions for the energy sector, pipeline developers and landowners alike.
