ND PSC Attorney Says Safety Not a Factor in State Pipeline Permitting

An attorney for North Dakota’s Public Service Commission argued Tuesday that the agency cannot consider public safety when issuing pipeline permits, according to a report from the North Dakota Monitor. The statement came during a court hearing over the permit for the Summit Carbon Solutions carbon dioxide pipeline.

Attorney Zachary Pelham, representing the PSC, stated that while the commission must consider public welfare, that does not include safety. “Welfare and safety are two distinct things,” Pelham said during the hearing. The case involves a lawsuit from two counties and a group of landowners seeking to rescind the permit and send the application back to the PSC for further review.

The plaintiffs' attorneys argued that a key flaw in the permit process was the commission's failure to consider evidence on the consequences of a pipeline rupture. Carbon dioxide is a hazardous material, and inhaling it in high concentrations can be fatal. Summit Carbon Solutions developed a plume dispersion model to assess the risks of a rupture, but the model was not made public or included in the PSC's permit record.

Attorney Randall Bakke, representing Burleigh County, said the model would help determine the safety risk posed by the carbon pipeline. Bakke noted that Summit provided the model to some individuals, including a Bismarck developer and an oil industry lobbyist, but did not provide it to attorneys representing stakeholders in the case.

The plume model was also cited as relevant for determining if pipeline setback ordinances passed by Burleigh and Emmons counties could be considered reasonable. These setbacks, which mandate a minimum distance between a pipeline and a residence, form another basis for the permit appeal.

In response, PSC attorney Pelham contended that pipeline safety is strictly a federal issue. When South Central Judicial District Court Judge Jackson Lofgren asked what role the PSC has in regulating a pipeline if it cannot direct its route or ensure its safety, Pelham answered that the commission can consider impacts to state-owned land, the environment, and wildlife. He said commissioners can ask questions about pipeline thickness and shut-off valves but have no authority over those areas.

Bakke argued that Pelham's position "simply defies logic." Attorneys for the landowners also argued the PSC did not properly address insurance liability concerns for landowners in the event of a rupture and that regulators did not adequately analyze the pipeline's financial assurance mechanisms. Judge Jackson Lofgren did not issue a ruling Tuesday.

The hearing highlights the limited scope of state authority over pipeline routing and safety, a regulatory framework that applies to all pipelines crossing North Dakota, including those servicing the Bakken. The outcome could influence how future infrastructure projects for carbon capture, oil, or gas are permitted in the state.