North Dakota law says for amalgamation to occur, owners of at least 60% of the pore space in a storage facility must consent to easements and the storage facility operator must make a “good-faith effort” to get the consent of all landowners. Those who do not sign easements are to be “equitably compensated.”
The landowners group — which was joined by the North Dakota Farm Bureau — argues that the practice of permitting the property of non-consenting landowners for carbon storage constitutes a taking of land. When the state takes — or allows a company to take — private land after it cannot obtain voluntary easements, it must file eminent domain proceedings against landowners where a court determines what “just” compensation would look like, and sometimes if the taking constitutes a “public use.” The latter is less common.
By amalgamating pore space without filing eminent domain proceedings, the state is violating the constitution, the landowner group argues.
Amalgamation has been used numerous times over the past few years as the state has permitted a growing number of carbon storage facilities. Summit Carbon Solutions, Minnkota Power Cooperative and Basin Electric Power Cooperative intervened in the case on the side of the state; all of those companies have ongoing or planned carbon storage projects.
Defenders of the amalgamation law argue pore space should be viewed as a resource similar to oil and gas, which the state can “pool” or combine interests to allow for drilling when there is not 100% approval from mineral owners within an oil well’s spacing unit. They also point to the relatively large chunks of pore space — sometimes exceeding 90% — that companies have obtained with voluntary contracts.
Carbon capture and storage is a key initiative of both the state and federal governments. The relatively nascent practice prevents CO2 emissions from entering the atmosphere and contributing to climate change. The infrastructure for it could also set the stage for using CO2 in enhanced oil recovery, a practice needed to keep high oil production in North Dakota’s Bakken oilfields long-term. The landowner group has said it is not opposed to carbon storage projects, just how the state permits them.
Derrick Braaten, the Northwest Landowner’s attorney, said the group may appeal the Bottineau County decision, though he said going the “as applied” route with a direct challenge to a specific project is more likely.
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Publish date : 2024-08-26 13:00:00
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