Contributor: Lee Grossman

North Dakota Legislature Attempts To Limit Eminent Domain For Carbon Dioxide Pipelines

A little while back we posted a blog article about Pipelines and Eminent Domain in North Dakota. We covered landowner rights, public use, and regulations under eminent domain. You should really check it out.

Since that blog article was published, the 2023 session of the North Dakota Legislature considered eight bills aimed at the recent carbon dioxide (CO₂) pipeline proposed by Summit Carbon Solutions. All eight were introduced in the Senate, and all eight failed to pass the Senate.

Below is a short breakdown of each of those bills and how the bills attempted to change the landscape in dealing with carbon capture pipelines.

• SB 2209: Requires 85% of landowners to provide a voluntary easement to obtain a right of eminent domain. Counties could set a higher standard. This bill FAILED TO PASS.
• SB 2212: Removes carbon capture pipelines from being granted the right of eminent domain even if granted common carrier status. This bill FAILED TO PASS.
• SB 2228: Requires 100% consent for underground carbon dioxide storage from the owners of the pore space, eliminating eminent domain. This bill FAILED TO PASS.
• SB 2251: Survey crews must obtain written permission from property owners. This bill FAILED TO PASS.
• SB 2310: If a person prevails against the state in a court hearing, they are entitled to be reimbursed for court costs. This bill FAILED TO PASS.
• SB 2313: If property is taken by eminent domain, a court must increase the award by 33%. This bill FAILED TO PASS.
• SB 2314: Requires a public hearing in each county where the pipeline company is seeking common carrier status. This bill FAILED TO PASS.
• SB 2317: Requires 85% of landowners to consent to underground storage space. Counties could set a higher standard. This bill FAILED TO PASS.

Old Eminent Domain Law Is Still “The Law”

So what does it mean that all eight of these bills failed to pass? The current law in place for dealing with CO₂ pipelines hasn’t changed. Despite all the publicity that these bills received during their introduction during the legislative session, these bills failed to make a dent in the eminent domain arena in North Dakota. The law hasn’t changed in decades.

CO₂ pipelines are considered common carrier pipelines. N.D.C.C. § 49-19-01. CO₂ pipelines have the power of eminent domain in North Dakota. N.D.C.C. § 32-15-02(10). This means that the landowner who is approached by Summit Carbon Solutions, or any other CO₂ pipeline company, is not only fighting against the pipeline, they’re also fighting against the well-established legislation. CO₂ pipelines were added to the common carrier list and granted the power of eminent domain in 1993. With the support of the current Governor and the failure of any of the proposed bills to limit or prevent CO₂ pipelines to pass the Senate, it is unlikely that these laws will change any time soon.

Contact Attorneys Who Have Experience In Negotiating With Summit Carbon Solutions

As a landowner, you may think that you have run out of options and should just give up. However, you still have rights. CO₂ pipelines still have a duty to negotiate and pay just compensation for your land. The landowner still has a right to say “no” and demand court action for taking of the land. The court still has to determine that the taking is necessary for a public purpose. A jury must still decide the amount of damages owed to the landowner. And the landowner may be entitled to reimbursement of their legal costs and expenses, including attorney’s fees.

Whether you are interested in fighting eminent domain proceedings of a CO₂ pipeline or negotiating the terms of an easement and payment, you have a right to know your legal options. The attorneys at SW&L have knowledge and experience in eminent domain proceedings across North Dakota and specifically in negotiating landowner easements with Summit Carbon Solutions. To date, SW&L has helped dozens of landowners secure fair compensation and peace of mind for their easements.

If you need help dealing with Summit Carbon Solutions, whether it’s for the purpose of negotiating an easement or for eminent domain, contact one of our business law attorneys, visit our website, call SW&L at 701.297.2890, or you can email info@swlattorneys.com.

The information contained in this article and on this website is for informational purposes only and not for the purposes of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.