North Dakota Public Service Commission attorney Zachary Pelham attends a hearing on April 2, 2026, in Fargo. On Tuesday, Pelham argued on behalf of the PSC in a hearing on the Summit Carbon Solutions pipeline. (Photo by Jeff Beach/North Dakota Monitor)
BISMARCK, N.D. (North Dakota Monitor) – An attorney for North Dakota’s Public Service Commission said Tuesday that the agency can’t consider public safety when issuing a pipeline permit.
Attorney Zachary Pelham said while the commission must consider public welfare, that doesn’t include safety.
“Welfare and safety are two distinct things,” Pelham said during a hearing on a dispute over the permit for the Summit Carbon Solutions pipeline.
Two counties and a group of landowners have sued the Public Service Commission and Summit over what attorneys said were flaws in the permit approval process. The lawsuit seeks to rescind the permit and send the application back to the PSC for further review.
South Central Judicial District Court Judge Jackson Lofgren did not issue a ruling Tuesday.
One of the flaws cited Tuesday was that the three-person commission did not seem to consider evidence on what would happen if the pipeline were to rupture. Carbon dioxide is a hazardous material and inhaling it in high concentrations can be fatal.
Summit Carbon Solutions has developed what is known as a plume dispersion model. The model was not made public or made part of the PSC record in the permit case.
Attorney Randall Bakke, representing Burleigh County, said the model would help determine the safety risk posed by a carbon pipeline. Bakke noted that Summit provided the model to some people, including a Bismarck developer and an oil industry lobbyist, but did not provide it to attorneys representing stakeholders in the case.
Attorney Steve Leibel said the plume model was relevant for another reason — it would help determine if setbacks passed by Burleigh and Emmons counties could be considered reasonable. Those setbacks — a minimum distance that must be between a pipeline and a residence — are another basis for the permit appeal.
But Pelham said safety was strictly a federal issue.
That led Lofgren to ask Pelham, “If the PSC doesn’t have any authority to direct where a pipeline goes or that it’s safe, what role does the PSC have in regulating a pipeline?”
Pelham answered that PSC can consider things such as the impact to state-owned land and to the environment and wildlife. He said the commissioners can ask questions about things such as pipeline thickness and shut-off valves, but has no authority over those areas.
Bakke said Pelham’s argument that public welfare doesn’t include safety “simply defies logic.”
Bakke and Leibel also argued the PSC did not properly address insurance liability concerns from landowners if there was a pipeline rupture and that regulators did not adequately analyze alternate routes. They also challenge the PSC interpretation of state law that state zoning laws preempt local government regulations.
Safety was one of the main public concerns during commission hearings on the pipeline that was proposed to capture carbon from ethanol plants and bring it western North Dakota for permanent underground storage.
The Public Service Commission initially denied Iowa-based Summit Carbon Solution a permit in 2023. Summit made changes to its route, including avoiding potential landslide areas.
The PSC in 2024 approved a revised route.
The future of the project is unclear, however, as Summit has not been able to secure a state permit in South Dakota.
In addition, two district court judges have determined the underground storage permits and the law they were issued under are unconstitutional. Those cases are being appealed to the North Dakota Supreme Court.
Summit recently announced plans to target a carbon storage area in Wyoming that would bypass the Dakotas and Minnesota.
A spokesperson said in May that North Dakota, South Dakota and Minnesota “remain important for our company.” The spokesperson did not return a request for comment on Tuesday.
Comments