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ND Industrial Commission's statutory authority on issue questioned

To date, the two CO2 injection wells permitted by the NDIC had nonconsenting landowners forced into the storage facility.

JSSP Letter to Editor
We are part of The Trust Project.

Our family was approached by a developer to lease our pore space for the sequestration of carbon dioxide (CO2) in late 2021, which set us on a journey learning more than we ever imagined about our state statutes, legal decisions by our state/federal supreme courts and the inner workings of permitting Class VI injection wells in North Dakota.

North Dakota has been granted primacy in permitting Class VI injection wells for CO2 sequestration by the EPA — a feather in North Dakota’s hat. Statutory language circa 2009 (North Dakota Century Code (NDCC) 38-22) frames the process of permitting these wells.

NDCC 38-22 conveys NDIC a limited authority to force nonconsenting landowners' pore space into a CO2 storage facility against their will. This statute states “the commission may require that the pore space owned by nonconsenting owners be included in a storage facility and subject to geologic storage” (NDCC38-22-10).

To date, the two CO2 injection wells permitted by the NDIC had nonconsenting landowners forced into the storage facility. In permitting these wells, the NDIC has clearly outkicked their statutory authority and granted not only the pore space rights to the private developers but also granted access and use rights to private surface lands if the developers deem necessary without landowner permission.

Repeated requests for an explanation from NDIC/Department of Mineral Resources employees, leadership along with state representatives have gone unanswered as to where the statutory authority lies to hand over private property owners' surface land to private developers without the landowners' consent.

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Maybe they will provide a response to these potentially illegal actions.

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