Also see “With Time Dwindling, Gaps in EPA’s Proposed Carbon Sequestration Framework Remain Unchallenged” for an update on this topic.

In about one month, the Environmental Protection Agency (EPA) will close the comment period on a proposed framework for regulating underground injection and long-term geological sequestration of carbon dioxide (CO2) under its Safe Drinking Water Act (SDWA) authority.  The proposal offers a useful starting point for thinking about many of the technical, policy and legal issues involved in capturing, liquefying, transporting, injecting and storing CO2 deep underground for the next thousand years.  One alarming aspect of the proposal, however, is EPA’s acknowledgment that it still lacks the authority to address many of the most critical regulatory issues related to commercializing carbon sequestration technologies.  If so, neither EPA nor Congress can afford to wait until 2010, when EPA’s final rule is expected, to start filling in the gaps. EPA’s proposed rule identifies numerous areas where SDWA provides inadequate authority to support key aspects of a comprehensive carbon capture and sequestration program.  Early on in the preamble, EPA warns:

The SDWA provides EPA with the authority to develop regulations to protect [underground sources of drinking water, or] USDWs. The SDWA does not provide authority to develop regulations for all areas related to GS. These areas include, but are not limited to, capture and transport of CO2; determining property rights (i.e., to permit its use for GS and for possible storage credits); transfer of liability from one entity to another; and accounting or certification for greenhouse gas (GHG) reductions. 

These caveats, amplified throughout the preamble to the proposed rule, reflect critical gaps in the regulatory framework necessary to implement a comprehensive carbon capture and sequestration (CCS) policy.  Indeed, unless EPA (or commenters) can identify existing sources of statutory authority that fill these gaps, comprehensive CCS regulations likely will have to wait for new legislation from Congress.  

Stakeholders have until November 24, 2008, to provide comments on the proposed underground injection control program currently under development for CCS projects.  In preparing their comments, stakeholders may want to offer their perspectives on the need for supplemental legislation that will allow EPA to consider all aspects of commercial-scale CCS projects-not just issues related to drinking water protection.

For further information about this topic, please contact Akin Gump.