North Dakota Judge Rules State Pipeline Siting Rules Do Not Automatically Override Local Zoning
South Central District Court Judge Jackson Lofgren ruled on October 9 that North Dakota's rules on where infrastructure such as pipelines may be built do not automatically override local zoning ordinances. Bismarck attorney Derrick Braaten, who represented Emmons County, called it a major win for local government authority — including the power of local governments to set setback rules on how far a pipeline route must be from homes and other buildings.
The case grew out of a lawsuit by a group of landowners along with Emmons and Burleigh counties against the state Public Service Commission (PSC) and pipeline developer Summit Carbon Solutions. In November 2024, the PSC issued a pipeline route permit to Summit, an Iowa-based company whose original plan was to gather carbon dioxide from ethanol plants in five states and move it through a pipeline network to western North Dakota for permanent underground storage.
The judge identified four problems the PSC must address: public welfare — the PSC must better explain why it believes the route will not impair public welfare. A PSC attorney had argued in July that safety was not the agency's responsibility and that pipeline safety standards are enforced by a federal agency, but the judge made clear the state agency can and should consider safety when weighing a route's effect on public welfare; the alternate route — the PSC did not adequately explain why an alternate route through southern Burleigh County had been sufficiently analyzed; the plume model — Summit built a model of how carbon dioxide might disperse if its high-pressure pipeline ruptured, and the PSC agreed it should stay secret. The judge ruled a redacted version should be made public, or the PSC must better explain the secrecy, given evidence that Summit had shared the model with some members of the public; local ordinances — the PSC must determine whether the setbacks set by Emmons and Burleigh counties are unreasonable. Only if deemed unreasonable do state rules apply.
"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. He noted the ruling reaches beyond pipelines: in 2025 the Legislature copied the same statutory language that had applied to pipelines and used it to give the PSC authority over power lines as well. Preemption of local zoning was also an issue during PSC hearings on the JETx power line slated to run from Jamestown to Ellendale.
The order keeps in place the route permit the PSC issued to Summit in November 2024, but requires the agency to fix the problems identified. A PSC spokesperson said Friday its legal team was reviewing the findings and needed time to determine next steps; Summit did not return an email seeking comment that afternoon.
The future of Summit's project in North Dakota remains unclear. The company has been unable to obtain a permit for a pipeline through South Dakota to reach North Dakota. In addition, Lofgren has ruled in a separate case that the North Dakota law allowing underground storage is unconstitutional, echoing a ruling from a different court, and an appeal seeking to retain access to some of that storage is pending before the North Dakota Supreme Court. Summit has developed an alternative plan to use underground storage in Wyoming.
Published by GSM · USA (original Chinese edition)
Photo: Quintin Soloviev 摄，CC BY 4.0（Wikimedia Commons）
