Environmental Law Matters

In mid-December, the U.S. Environmental Protection Agency issued final rules that the Agency said are intended to facilitate the management of carbon dioxide gas that is required to be captured from electric power plants. Summaries of the regulations and links to them can be found here and here. The rules are intended to support rules on carbon pollution standards for new power plants, which were published earlier this year in draft form and have not yet become final. Those draft regulations have been criticized for a number of reasons, including an assertion by industry that they cannot be implemented without the use of underground carbon sequestration, a technology which it is argued has not yet been proven to be effective. Carbon injection has been used to rejuvenate oil fields once the natural pressure in those fields has diminished as a result of the removal of large volumes of oil, but the process has not been fully implemented simply for the purpose of sequestering CO₂ beneath the ground's surface. Moreover, there are arguments that existing regulations governing hazardous waste management and ground water contamination might otherwise thwart the process or at least make it too cumbersome. The recent EPA regulations seek to remove some of these obstacles by exempting the gas from regulation as a hazardous waste when it is injected into Class VI wells approved for geological sequestration. EPA had earlier issued rules using its authority under the Safe Drinking Water Act to facilitate such deep injection. The recent rule clarifies that the carbon-dioxide-containing materials are exempt from regulation as a hazardous waste intended for disposal. Finally, the rule was accompanied by draft guidance from EPA suggesting a regulatory method to transition Class II wells currently used for oil and gas development into Class VI wells for carbon sequestration. While these new rules may remove some objections to the Agency's overall approach to CO₂ regulation, they are not likely to resolve underlying concerns about the cost of carbon sequestration and the uncertainties associated with the process itself. And it appears that it is those issues which must be resolved before carbon capture can become viable. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.