Environmental Driven Solutions, LLC v. Dunn County
2017 ND 45
| N.D. | 2017Background
- EDS obtained a permit from the Industrial Commission in August 2013 to build an oil and gas waste treating plant in Dunn County.
- The permit covered recycling and treating waste crude oil and related wastes; it required compliance with applicable laws and regulations.
- County zoning notified violations and denied rezoning/conditional use, arguing the site violated Rural Preservation zoning and that Salt Water Storage Tank facilities were not allowed.
- EDS sought a declaratory judgment that the Commission, not the County, had jurisdiction to determine siting; the Commission intervened.
- The district court granted summary judgment holding the Commission had exclusive jurisdiction and County zoning was preempted;
- the County appealed and the Supreme Court affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is siting of oil and gas waste treating plants exclusively within state control? | EDS argues Commission occupies the field, precluding local zoning. | Dunn County contends Commission lacks power to override zoning that bars the facility. | Yes; the Commission has exclusive jurisdiction to locate waste treating plants. |
| Do state regulations preempt local zoning on treating plants? | State law controls siting, preempting county ordinances. | Local zoning can regulate where facilities may be located absent preemption. | Preemption applies; local zoning is preempted by state regulation for siting. |
| Does NDCC § 38-08-04 authorize regulation of treating plants by the Commission? | NDOC regulates oil and gas waste, including treating plants. | The County argues treating plants are outside Commission regulatory scope. | Yes; the Commission has authority to regulate treating plants under § 38-08-04. |
| Can County zoning provisions impose a veto where the Commission has siting authority? | Zoning cannot veto when Commission regulates siting. | County retains some land-use control and can object. | County lacks authority to veto the Commission’s siting decision. |
Key Cases Cited
- State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84 (ND 2006) (preemption and summary judgment standard in declaratory actions)
- Ramsey Cty. Farm Bureau v. Ramsey Cty., 2008 ND 175 (ND 2008) (de novo review of preemption on summary judgment)
- Mountrail Cty. v. Hoffman, 2000 ND 49 (ND 2000) (local zoning cannot contravene state law; field preemption framework)
- Cont’l Res., Inc. v. Farrar Oil Co., 1997 ND 31 (ND 1997) (state regulatory powers over oil and gas development are comprehensive and exclusive)
- Egeland v. Cont’l Res., Inc., 2000 ND 169 (ND 2000) (commission's powers are continuous and exclusive)
- Amerada Hess Corp. v. Furlong Oil & Minerals Co., 348 N.W.2d 913 (ND 1984) (context of comprehensive state regulation of oil and gas)