State’s high court rules against Dunn County

Lower-court ruling upheld that county can’t veto state commission

The North Dakota State Supreme Court said Dunn County does not have the authority to veto the North Dakota Industrial Commission in a case regarding the location of an oil and gas waste treating plant.

The court on Tuesday rejected local counties’ arguments in a lawsuit brought on by Environmental Driven Solutions against Dunn County made last year, that their zoning regulations apply in oilfield waste treatment.

The State Legislature and its administrative agencies now claim sole jurisdiction over oil, gas, pipeline placement and attendant waste issues from the statehouse not the local courthouse.

The essence of the EDS ruling was concise, “We affirm (the District Court), concluding (a) county lacks the power to veto the (Industrial) Commission’s approval of the location for an oil and gas waste treating plant.”

With that the long-standing, joint NDIC and county regulation of the above-ground activities related to oil drilling, gas exploration, production, and waste treatment/disposal ended.

A rehearing on the case may be requested, but Dunn County Planning & Zoning attorney Ariston Johnson said “that’s extreme and not likely granted.” Johnson said he doesn’t plan on pursuing that unless the Dunn County Commission orders it.

Environmental Driven Solutions owner Shawn Kluver could not be reached for comment and his attorney Zachary Pelham was unavailable for comment.

The dispute started in 2013 when Environmental Driven Solutions sued Dunn County for denying zoning for storage tanks on property adjacent to the treatment facility. The company said state law gave the Industrial  Commission authority over oil drilling and oilfield waste and pre-empts local zoning.

A district court ruled in favor of the company and Dunn County appealed to the state’s high court. Oral arguments were heard in November.

What about man camps, traffic, housing, dust control, aesthetics, property values and other incidental impacts of the oil and gas industry?

“The core of the decision is the NDIC has exclusive authority to regulate this industry and, in particular, waste treatment. It’s going to take other judicial hearings to specifically determine these other issues,” Johnson said.

“As your States Attorney, my interpretation is that this ruling also forewarns litigating those latter issues too. Remember that the statute being interpreted in EDS also specifically allowed county regulators to have a say in solid waste treatment too. Logic dictates that if one area of production and disposal is ‘pre-empted,’ all of it is now when read in harmony,” said Pat Merriman, Dunn County States Attorney.

Next question? The hotly-debated “special waste landfill” issue raised last year too.

Johnson continued, “The current ruling is limited to drilling oil and gas wells. However, it is likely that the court would also decide special waste disposal is exclusively regulated by the state now too,” Johnson said.

Although there is a separate Century Code provision dealing with special waste landfills, applying pre-emption as the overriding interpretation most likely moots that too if the state grants a permit.

However Johnson says, “Ultimately this means that if people have opinions about any of these issues, including special waste landfills, they need to be expressed to the NDIC or their state legislators now.”


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