Summit CO2 injection wells up for approval, but court appeal already in the works

BISMARCK — North Dakota is poised to allow millions of tons of carbon dioxide to be permanently stored underground, but an attorney representing landowners argues the process has been unfair and he is already laying the groundwork for an appeal.

North Dakota’s Industrial Commission is expected to vote at its Thursday meeting on plans for underground storage wells operated by Summit Carbon Solutions that will take in carbon dioxide from ethanol plants in five Midwest states.

The Industrial Commission is composed of Gov. Doug Burgum, Attorney General Drew Wrigley and Agriculture Commissioner Doug Goehring.

Summit’s plan is for three injection wells in Mercer and Oliver counties. Once the CO2 is injected, it will spread into the pore space — gaps and voids deep underground where the gas can be held permanently.

Attorney Derrick Braaten of Bismarck represents landowners in the sequestration area, which also includes part of Morton County. He said North Dakota’s Department of Mineral Resources, which falls under the Industrial Commission, failed to provide landowners with a computer-generated model for how the CO2 would disperse underground.

Braaten said he eventually obtained the model from the Energy and Environmental Research Center in Grand Forks.

Braaten said his clients deserve the right to examine the dispersion model because that is what is used to determine how many landowners will be compensated for storing CO2 beneath their land and how much they will be paid.

“If you’re going to do this, there’s a fair way to do it,” he said.

With the help of a petroleum engineering company, he said he was able to replicate the results of the EERC model, but that it took 20 days for the computer to generate the report.

He said he believes the EERC model is flawed and it would take two to three months to generate and submit a model that he thinks would be more accurate.

He said the appeal would be based on a lack of due process when he and his clients were not provided Summit’s model before a hearing in June.

Former North Dakota Director of Mineral Resources Lynn Helms called the June hearing “one of the most contentious” he’s ever endured.

Helms has since retired, and Braaten said he is encouraged his replacement, Nathan Anderson, has been more forthcoming with information.

But Braaten, in a November filing with the Industrial Commission, still requested more time to create a model for his clients.

A Summit letter filed in response to Braaten’s request argued that further modeling was “an exercise in futility.”

“The modeling information merely provides a ‘best prediction’ of plume migration based on the variables put into the model. No party will know or understand the actual migration until after injection operations have commenced,” Summit’s letter said.

Summit said it will notify the commission if monitoring activities indicate that the plume is reacting or migrating other than as predicted, including if the data suggests that the plume may travel outside of the horizontal boundaries of a storage facility.

Summit’s filing said it is required to submit injection data on a monthly, quarterly and annual basis, and to submit Summit’s seismic data by the end of the second, fourth and ninth years after injection begins.

Before it can begin injecting CO2, Summit needs to build its pipeline to the injection sites. It recently obtained a pipeline permit from the North Dakota Public Service Commission and has a permit in Iowa.

Summit faces a permitting challenge in South Dakota, where it already has been denied a permit once.

The project also faces legal challenges in North Dakota, including from the Northwest Landowners Association, represented by Braaten.

The Northwest Landowners Association has asked the state Supreme Court to rule on a lawsuit challenging the state’s laws that cover underground storage as being unconstitutional. State law allows for forcing landowners to allow pore space storage if 60% of the affected landowners have agreed to the storage plan.

Summit has said it has about 90% participation in the storage area.

The provision, known as amalgamation, does not allow landowners the right to appeal the decision in the court system, unlike the use of eminent domain. Summit is among the energy companies that has intervened in the case.

Burgum, during a discussion of the lawsuit at the November Industrial Commission meeting, said one landowner should not be able to veto a carbon storage project. He noted that, unlike a pipeline route, where a company may be able to route around a dissenting landowner, there is no way to exclude a landowner who doesn’t want their pore space used for storage.

Kurt Swenson lives south of Beulah and owns land in the sequestration area and is a member of the Northwest Landowners.

He said the Industrial Commission’s approval of amalgamation and the storage wells “would be consistent with their trampling of property rights.”

He said the landowners’ primary argument is that the state has no right to take pore space.

He said he also has been frustrated by Summit’s lack of willingness to negotiate, a complaint that also came up during hearings on the pipeline permit.

Summit estimates the Midwest Carbon Express pipeline project cost at $8.9 billion to connect 57 ethanol plants to the storage wells.

If completed, Summit could sequester 18.5 million metric tons of CO2 annually. Summit would take advantage of federal tax credits of $85 per ton of CO2 stored.

The ethanol plants, including Tharaldson Ethanol at Casselton, the only North Dakota plant signed on to the project, would benefit by having access to markets with a low-carbon fuel standard, such as California.

Michael Achterling / North Dakota Monitor

Burgum has been a vocal proponent of the Summit project.

Burgum shared a stage with Bruce Rastetter, one of the founders of Iowa-based Summit Carbon Solutions, and Harold Hamm, founder of oil company Continental Resources, when Summit announced that Continental Resources would be an investor in the project.

While the Summit project is for permanent underground storage, CO2 can also be injected into oil wells, helping extend the productivity of the well.

Burgum is President-elect Donald Trump’s nominee to be Interior secretary and to chair a new National Energy Council that would oversee energy project permitting.

In most states, it is the Environmental Protection Agency that permits CO2 storage wells but North Dakota was the first state to be granted primacy in Class VI injection well permitting.

This story was originally published on NorthDakotaMonitor.com