North Dakota landowner and farm groups got a win when a local judge ruled that a state law dealing with property rights and carbon dioxide storage is unconstitutional.
 
The case brought against North Dakota by the Northwest Landowners Association, North Dakota Farm Bureau and others argued that a law allowing underground carbon storage in an area if a minimum of 60% of impacted property owners consent isn't constitutional. Northeast Judicial District Court Judge Anthony Swain Benson agreed in a ruling Tuesday.
 
The law “provides for government-authorized physical invasion of property constituting a taking and it does not provide for 'just’ compensation” as outlined in the North Dakota Constitution, he said. 

The case, which had been sent back to the lower court by the state Supreme Court, is expected to be appealed. 

The ruling is the latest in a string of legal cases in North Dakota and nearby farm states related to property rights and carbon capture and storage.

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Summit Carbon Solutions, which last year was granted a carbon storage permit from North Dakota, has struggled to begin construction on its nearly $10 billion, 2,500-mile pipeline to transport carbon dioxide from ethanol producers in five states.

In March, South Dakota enacted a law prohibiting use of eminent domain for carbon dioxide pipelines. The pipeline as planned would run through Iowa, Nebraska, Minnesota, and South and North Dakota.

 While the case decided on Tuesday didn’t directly involve Summit or other CCS projects, it could have broader implications.
 
“We weren’t looking at any one specific company or storage or pipelines or anything like that,” Northwest Landowners Association Chairman Troy Coons said in an interview. “We were looking at rule of law.”
 
Still, Derrick Braaten, lawyer for the landowner group, said the ruling will be filed in a separate lawsuit in state court appealing North Dakota's approval of permits for Summit’s planned sequestration site. That case is expected to be ruled upon in the next month or two, he said. The ruling this week also could portend similar legal fights in other states, he said.
 
Summit Carbon representatives didn’t immediately respond to a request for comment. 

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