Democratic candidates for North Dakota Public Service Commission say recent statements by a PSC attorney about pipeline safety point to larger problems in state government.
PSC attorney Zachary Pelham told a judge that the agency can’t consider public safety when evaluating the route of an interstate hazardous liquid pipeline in North Dakota.
John Pederson and Scot Kelsh, Democrats who are challenging Republican incumbents for two positions on the PSC, took issue with those comments during a news conference in Fargo last week.
“The current Public Service Commission should publicly refute their staff attorney’s finding and make a determination that considerations of the public, both welfare and safety, will be the primary criterion when siting not only pipelines, but any infrastructure project that affects multiple stakeholders,” Pederson said Thursday.
Pederson of Mayville is running for the seat held by Sheri Haugen-Hoffart, a full six-year term. Kelsh of Fargo is running for the seat held by Jill Kringstad, a two-year term.
The comments by Pelham came July 14 during a district court hearing on a lawsuit challenging a permit for the Summit Carbon Solutions pipeline. The commission approved the permit for the pipeline in November 2024, but the project has stalled.
Pelham said pipeline safety was strictly a federal regulatory responsibility. The PSC considers public welfare, which Pelham said is different from safety.
“The commission determines whether or not there is compliance with the regulatory and statutory requirements to provide a minimal adverse impact on the public welfare of the citizens of the state of North Dakota,” Pelham said. “It doesn’t say that there’s a guarantee of safety as to where the pipeline is at.”
Pederson and Kelsh said Pelham’s arguments were off target.
“The narrow legal arguments in district court that the Public Service Commission cannot consider safety are emblematic of a broader leadership problem at the commission,” Pederson said.
Kelsh, a former legislator, added: “If the law, century code, is that ambiguous that the PSC cannot even consider public safety when siting a pipeline, then we’re going to need legislative changes in order to make that ambiguity go away.”
Kringstad said in an interview that the PSC can and does consider what might be the safest route for a pipeline during the siting process.
“We consider general safety standards and look at, specifically from the locational side … maybe there’s other alternatives where we can enhance safety,” said Kringstad, who was not on the PSC when the Summit route was approved.
Haugen-Hoffart said in an interview that the federal Pipeline Hazardous Materials Safety Administration would have jurisdiction over safety for the interstate pipeline. She said the PSC docket reflects that.
“I am comfortable that we consider safety when it comes to siting,” she added.
The original plans for the Summit pipeline would transport carbon dioxide captured at ethanol plants to a permanent underground storage site northwest of Bismarck. Legal hurdles and permitting delays have led Summit to target a storage site in Wyoming instead.
The main trunk of the North Dakota route would run through Emmons and Burleigh counties, both of which are seeking to have Summit’s permit repealed.
One argument from attorneys seeking that repeal is that an alternative southern route, keeping the pipeline farther away from Bismarck, didn’t receive enough consideration.
Public safety was a topic that came up frequently during public hearings on the controversial Summit pipeline. Carbon dioxide in high concentrations can be deadly.
Commission Chair Randy Christmann said the PSC has not put strict limits on what the public can discuss during a public hearing.
“I think, on all topics, we have always tried to be pretty generous with people to let them air their thoughts with us,” Christmann said.
He said Thursday he had not gone back to listen to Pelham’s comments but stood by the PSC process.
“As far as our siting, I think the courts will find that we are correct, and that PHMSA controls safety aspects of that,” Christmann said
South Central Judicial District Court Judge Jackson Lofgren questioned Pelham on what the PSC is able to consider when siting a pipeline, but did not rule on the permit appeal.
PHMSA did not respond to emailed questions from the Monitor.
Erin Sutherland, policy and program director for the Pipeline Safety Trust, said federal pipeline regulators generally leave siting authority up to the states. And states “absolutely” have a responsibility to consider public safety, she said.
She said zoning laws, such as required setbacks from homes, and exercising siting authority don’t infringe on federal regulatory authority.
Reach North Dakota Monitor deputy editor Jeff Beach at jbeach@northdakotamonitor.com
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