A North Dakota judge handed a win to landowners this week after he found that part of a property rights law authorizing underground carbon storage violates the state’s constitution.
Judge Anthony Benson of the Northeast Judicial District Court said a provision of North Dakota’s CO2 storage law ran afoul of the takings clause because landowners opposed to carbon injection beneath their property did not receive “just compensation” decided by a jury.
The law “clearly contains a government-authorized physical invasion of an interest in property, and interferes with a landowner’s use and enjoyment of property, including, but not limited to, a landowner’s right to exclude others,” Benson wrote in a memorandum opinion issued Tuesday.
The law allows companies permitted by the North Dakota Industrial Commission to inject up to millions of metric tons of carbon dioxide into gaps between rocks, soil and sediment — known as pore spaces — beneath landowners’ property. When the potentially decadeslong process is complete, the title for the project is transferred to the state.
