Oliver County votes against local carbon capture rules

The vote to reject the election was 2-1. Among a number of measures, it could have required companies storing carbon dioxide to provide an above-ground CO2 release model, ensuring storage facilities and flowlines would not endanger human health, to the county. CO2 is heavier than air, and, in concentrated levels, can stay low to the ground and be toxic.

Commissioner Blake Wilkens, who voted to reject the ordinance, declined to recuse himself despite claims that he had signed a contract with Summit Carbon Solutions, one of the companies seeking to put a carbon capture project in the county. His name is on Summit’s carbon storage permit for 10 acres of his land but he did not address the issue at the meeting. On Friday he told the Tribune he did have a contract with the company, but would not be making money from it since the project would not impact his property.

Planning and Zoning Board members who had signed contracts with companies seeking to put carbon capture projects in the county had chosen to recuse themselves due to potential conflicts of interest. Those board members are appointed, while commissioners are elected. The ordinance did not address a specific project.

Oliver County State’s Attorney Patrick Waters said his interpretation of the law is that it is up to the individual to declare a conflict. When asked about the potential conflict Friday, Waters said he was following the procedures laid out by the state. He said he had not seen the storage permit until Friday and did not have enough information to evaluate a potential conflict at the time.

The rejection of the ordinance came after more than two years of back and forth conversations between citizens, the county government and companies hoping to leverage the region’s unique geology for carbon dioxide storage.

The county, home to just under 2,000 people, hosts Minnkota Power Cooperative’s coal-fired Milton R. Young Station, and a mine that feeds it. The utility is seeking to build the $2 billion Project Tundra to address the CO2 emissions from Milton R. Young. The plant needs to cut or capture 90% of its emissions by 2032 if it wants to continue operating past 2039. The 10-year old Project Tundra was recently delayed as its price increased, with officials blaming the scope of federal regulations.

The county is also one of the proposed endpoints for Summit’s $8 billion, 2,500-mile multistate CO2 pipeline, which would transport emissions from 57 ethanol plants, helping companies and corn growers compete in markets favoring low-carbon fuels.

A goal of the state government is to one day have the CO2 sent to the oilfields to pump out hard-to-recover oil, though there are no current plans for that from either company.

Summit was required to make public the results of its CO2 dispersion model for 28 miles of pipeline that would run through northwest Minnesota, which shows some homes along the pipeline route could experience dangerously high concentrations of CO2 in the event of a break. Due to the nature of how CO2 spreads, which is dependent on location and atmospheric conditions, that cannot be directly applied to North Dakota.

The company has refused to make the North Dakota dispersion model public. It requested and was granted a security order for the pipeline CO2 dispersion model at the state Public Service Commission, citing concerns about terrorism. The part of the project that the municipality would have regulated — infrastructure just before the CO2 well — is not under PSC jurisdiction.

Summit has shown parts of its North Dakota dispersion model to a prominent housing developer and the head of an oil trade group who are both not part of the company, according to testimony at pipeline hearings.

Jeff Skaare, a Summit attorney, said that the ordinance, as written, was intended to kill carbon capture projects in the county and that many of the requirements laid out are already covered by the state, which has more staff than the county to enforce regulations . Conflicts around what entity would apply regulations and the possibility of them being applied differently would create “uncertainty” for the project he said.

Supporters of the government claimed the intent was not to stop projects, but to require more transparency and assurances from companies seeking to use the technology there.

Waters said the ordinance, in his opinion, would likely not stand up to a legal challenge, which could be costly for the county.

“If challenged, it is my legal opinion that these things won’t stand up … there are consequences to these decisions,” he said.

Commission Chair Lee Husfloen agreed, adding that he thought it would be unenforceable at the county level.

“Organized protests have occurred in virtually every development project in our county. If we complied with their demands and ways of thinking, there’s a possibility that we would not have (had any local development),” he said.

Husfloen said the county could not balance its budget decades ago, but the power plant and coal mine being built stabilized the county’s finances, despite protests at the time.

He then read a letter from Minnkota that said if the commission voted in favor of the ordinance it “could become a disaster for Oliver County.”

Husfloen then made a motion to reject the ordinance, which Wilkens voted for and Commissioner Dave Berger voted against.

In a statement, Minnkota Communications Manager Ben Fladhammer said, “We are grateful for this outcome and look forward to building on the positive relationships we’ve had in Oliver County for more than 50 years. As we continue to evaluate Project Tundra, we remain committed to keeping open lines of communication with the county, landowners, community members and other key stakeholders.”

Summit in a statement said it, “values ​​transparency, working with landowners on an individual basis, and has signed voluntary easement agreements with landowners of 100% of the pipeline route in Oliver County and more than 90% of leases for the sequestration sites. We are committed to educating stakeholders and elected officials on the benefits of the project. Our commitment remains pro-farmer, pro-business, and pro-ethanol, essential for advancing American energy. We acknowledge the challenging times in agriculture and aim to improve farmers’ incomes through our pipeline project.”

There are about 18.4 miles of pipeline in Oliver County, according to PSC documents.

Minnkota had previously claimed that the ordinance would threaten the state’s ability to regulate its own CO2 storage wells, putting that power back in the hands of federal regulators at the Environmental Protection Agency. This is something Minnkota said “will undoubtedly prompt” state legal action.

But Tribune inquiries to the EPA and the Department of Mineral Resources — the state agency which regulates CO2 wells — brought Minnkota’s claim’s regarding the ordinance’s threat to state primacy into question.

Much of what was in the proposed ordinance concerned above-ground infrastructure. Primacy on CO2 storage is given to states that can prove their carbon storage permitting process meets or exceeds the EPA’s when it comes to protecting underground drinking water.

Mineral Resources did not rule out a lawsuit, but said many of the rules in the ordinance appeared to “fall under county level planning and zoning jurisdiction” and that above-ground models showing how CO2 spreads are not covered by state or federal injection permits.

Minnkota declined to provide its legal rationale in response to a Tribune request. The co-op was present at the county commission meeting Thursday, and gave a comment opposing the ordinance but did not repeat similar claims about CO2 primacy.

Skaare, with Summit, did not bring up state primacy arguments, but said many parts of the ordinance were in contradiction with state law for other reasons.

He also highlighted the requirements from the state for county emergency plans and regular training, and Summit’s commitment to paying the county for equipment to deal with safety issues. But he said that safety response is a process that develops on course with stages of a project.

“There is a strong desire from many people to say, ‘I need to read the back of the book today,'” Skaare said.

Kurt Swenson, a local landowner spoke in favor of the ordinance. Swenson is challenging Summit’s permit applications to store CO2 beneath his property and is also involved in litigation against the state as part of a broader group which claims its CO2 storage permitting procedures are unconstitutional.

“There are no specifics because the end of the book hasn’t been written. Well at some point you have to write a chapter one and two and three and so on. “We should define what we want as a county for those chapters,” he said.

Skaare also highlighted a North Dakota Supreme Court case on oil and gas waste treatment plants finding that the state had authority over counties in siting.

“It’s our position that the sets of rules that govern carbon sequestration is significantly similar to these rules that there is clear authority with the (state) and in reality it could be subject to challenge,” he said.