Landowners, Counties & Local Advocates Respond to North Dakota Public Service Commission’s Decision Overruling Local Zoning Ordinances Regarding Pipeline Issues

FOR IMMEDIATE RELEASE: Feb. 8, 2024

Landowners, Counties & Local Advocates Respond to North Dakota Public Service Commission’s Decision Overruling Local Zoning Ordinances Regarding Pipeline Issues

Flawed state agency decision upending local control likely to be appealed in court

Bismarck, ND – Yesterday, the North Dakota Public Service Commission (PSC) made a pivotal decision regarding pipeline zoning issues, ruling that state regulations take precedence over local ordinances. In a unanimous 3-0 vote, the PSC’s determination signifies a significant shift in authority, favoring state rules over community-based zoning measures. While Dakota Resource Council (DRC) strongly disagrees with this decision, the organization aligns with Commissioner Christmann’s call for all North Dakotans to familiarize themselves with state law.

Despite assertions made during the proceedings regarding legislative changes in 2019, it’s crucial to note that no substantive alterations occurred during 2019. SB 2038, referenced in the proceedings, was clarified as a “technical correction bill” aimed at facilitating legislative changes from 2017. Contrary to claims, the legislative history underscores assurances that the law would not diminish local control.

The Petroleum Council lobbyist even emphasized that compliance directives should originate from the PSC, without eroding local authority. This decision also disregards the distinction between a certificate of corridor compatibility and a route permit, a point emphasized in NDCC 49-22.1-13. Chairman Porter’s comments in 2017 further clarified the legislature’s intent regarding this distinction.

Curt Stofferahn, Chair of Dakota Resource Council, expressed profound disappointment in the PSC’s decision, labeling it a significant setback for local governance in North Dakota. Stofferahn emphasized the importance of empowering local officials to enact zoning ordinances that safeguard community interests and characteristics, rather than succumbing to the agendas of foreign-backed corporations.

“The people of North Dakota should not have to relinquish their rights to accommodate the profit-driven ventures of CO2 pipeline companies,” stated Curt Stofferahn, Chair of Dakota Resource Council. “Local officials understand the unique needs and dynamics of their communities and should retain the authority to enact measures that secure their future.”

DRC urges North Dakotans to remain vigilant and informed about state laws and decisions impacting their communities. Upholding the principles of local governance and citizen participation is essential in preserving the integrity and autonomy of North Dakota’s towns and counties.

Emmons County attorney Derrick Braaten told the Bismarck Tribune there would likely be a response, but he does not “know when and what it will be quite yet” given that in order to preempt local ordinances, the PSC must first approve the pipeline. “We disagree on how they’re interpreting the law. I think the legislators were pretty clear that they didn’t want to take away local control, and that’s what’s happening here,” Braaten told the Tribune.

Attorneys Brian Jorde and Steve Leibel, who represent various landowners across the proposed route, also told the Tribune there will likely be a challenge. They pointed to the phrase “designated corridor” not being removed from the law the PSC references in its decision. A corridor is the broader area in which a pipeline can be placed.

Jorde and Leibel told the Tribune despite being able to now apply for both a designated corridor and a route permit together, as Summit has, it does not change the designated corridor needing to be approved first.

“Think of it as the toll road — you’ve got to get through the toll, you’ve got to follow the rules and now we have nine different lanes we can choose,” Jorde told the Bismarck Tribune. “So here’s the entire highway — that’s the corridor — now, which lane of those are you picking, the specific one? They’re two different things; we analyze them different, and the preemption power of the (PSC) only applies to the latter, the exact route after the corridor has been greenlighted.”

Bold Alliance founder Jane Kleeb: “The industry is always suing counties and landowners so they can keep running roughshod over their property rights. At some point, our country needs to honor local zoning and property rights, instead of always giving corporations whatever they want with no guardrails in place. We want basic protections and are not getting them because of corporate greed.”

Read the full North Dakota Public Service Commission decision:

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