North Dakota Judge Rules in Favor of Landowners, Finds Law Unconstitutional

December 03, 2025

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(News from the States) A district court judge on Tuesday (December 2, 2025) sided with a landowner group and found a North Dakota law related to underground storage of carbon dioxide to be unconstitutional.

The ruling from Northeast Judicial District Judge Anthony Swain Benson could have implications for the controversial Summit Carbon Solutions pipeline project, which has a carbon dioxide storage permit from the state.

The Northwest Landowners Association in 2023 sued North Dakota and the state Industrial Commission, which approves permits for permanent underground storage of carbon dioxide. The landowner group challenged a state law that requires landowners to allow carbon dioxide storage beneath their property if at least 60% of the affected landowners agree to the project.

Benson writes in his order that the state law is unconstitutional because it allows a government-authorized taking of property without an avenue for “just” compensation determined by a jury. In this case, the property is pore space – cavities in underground rock formations where emissions can be trapped.

“The court is basically saying the constitution trumps that law, so that law can’t be enforced,” said Derrick Braaten, attorney for the landowner group.

North Dakota Attorney General Drew Wrigley said late Tuesday his office was beginning to evaluate “possible legal avenues forward.”

“It’s a critically important question, and one where we believe the state, the duly elected state Legislature, properly balanced all of the interests involved and reached an outcome that respects private property rights, but also the needs of an economy moving forward,” Wrigley said.

In the case of Summit, about 92% of landowners in the storage area had chosen to participate in the project when the Industrial Commission approved the storage permit last year.

Troy Coons, chair of the Northwest Landowners Association, encouraged companies to move forward by working with landowners to obtain 100% voluntary participation in carbon storage projects. When that isn’t possible, eminent domain could be used for projects that have a public benefit, Braaten said.

“Be a good partner. Show us it’s a good project, people will be involved,” Coons said.

Braaten said he believes the judge’s decision voids all orders issued by the Industrial Commission to require the participation of landowners in a carbon storage facility, a process known as amalgamation.

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Meanwhile, Braaten is representing a group of landowners challenging the legality of the permit granted by the Industrial Commission for Summit Carbon Solutions’ carbon storage project. The parties are awaiting a decision from South Central Judicial District Judge Jackson Lofgren in that case.

Summit proposes to transport emissions from ethanol plants in five states via pipeline for permanent storage in North Dakota. READ MORE

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Excerpt from News from the States: Summit said the North Dakota storage area “remains an important long-term asset for the project and our partners, including the State of North Dakota, our ethanol plant customers, and the communities we serve.”

The ruling also could impact the coal and oil and gas industries.

Jonathan Fortner is the president and CEO of the Lignite Energy Council, a leading coal group in North Dakota.

“The district court’s decision creates new uncertainty for carbon capture projects at a time when reliable, affordable electricity is more important than ever,” Fortner said in a statement. “When projects stall, the impacts are not abstract. They show up in grid reliability, electricity bills, and the loss of high-paying, local careers.”

Minnkota Power Cooperative has been working to develop Project Tundra, which would capture carbon from a coal-fired power plant near Center for underground storage.

The Energy and Environmental Research Center in Grand Forks, has worked on both the Summit and Minnkota projects.

“It puts a shadow on projects and the projects underway,” John Harju, EERC’s vice president for strategic partnerships said of the ruling Wednesday.

The law that was challenged requires landowners to allow carbon dioxide storage beneath their property if at least 60% of the affected landowners agree to the project.

About 92% of landowners in Summit’s storage area in Oliver, Mercer and Morton counties had chosen to participate in the project when the Industrial Commission approved the storage permit last year.

The Dakota Resource Council, an environment group, said the ruling strengthens the position of landowners.

“We see it as a major win for family farmers, ranchers, and rural landowners who have been standing up to CO2 pipelines and storage projects,” the group said in an email.

Owen Anderson, an energy law scholar who began his career in North Dakota, was surprised by the decision. He’s not aware of any courts in other states that have reached a similar conclusion and said the decision, if upheld, opens the door to challenges of other pore space uses such as saltwater disposal, which could impact the oil and gas industry.

“I would assume the state would appeal this,” Anderson said. “It’s a key case, no question about that.”

North Dakota Attorney General Drew Wrigley said Tuesday his office was still evaluating next steps.

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National leader

North Dakota has been a leader in carbon capture and storage. It was the first state to be granted primacy in permitting Class VI injection wells, the kind of well needed for CO2 storage. Previously, all permitting had been done at the federal level.

North Dakota has two ethanol plants injecting carbon underground, Gevo’s site near Richardton, formerly Red Trail Energy, and Blue Flint Ethanol at Underwood.

A representative of Colorado-based Gevo said the company is glad to work with the local community and landowners.

“We believe in fair compensation for our landowner partners and this has not been an issue for us in Richardton, nor do we expect it to be an issue in the future,” Gevo said in a statement.

Basin Electric Power Cooperative also operates a carbon storage operation at the Great Plains Synfuels Plant near Beulah.

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Legislature’s role

The decision creates uncertainty around how carbon capture projects could move forward and whether the Legislature will need to take further action.

Sen. Dale Patten, R-Watford City, is one of the legislative branch’s biggest proponents of carbon sequestration. He’s not sure what the next step will be if the district court ruling isn’t overturned.

“If the Supreme Court upholds the decision, what would be the alternative language that we could use?” Patten said. “I don’t know.”

Pore space, unlike surface land, cannot be fenced off. Carbon dioxide injected into underground pore space will migrate horizontally without regard for property lines on the surface.

“This concept lets a small minority of pore space owners, even just one owner, dictate to the majority of owners — the majority have property rights as well,” Ron Ness, president of the North Dakota Petroleum Council, said in a statement Wednesday.

Patten fears the court’s decision will prevent landowners from realizing the value of their pore space.

“You cannot realize that value individually very effectively,” Patten said. “You have to realize it collectively.”

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Troy Coons, chair of the Northwest Landowners Association that challenged the law in court, said a company could use good business practices and work with landowners to lease 100% of the pore space in a project area. If it is a public utility using the pore space for a public use, and they can’t lease 100% of the pore space, they have the option to use eminent domain. READ MORE