Carbon capture and sequestration (CCS) involves capturing carbon dioxide at power plants, refineries, petrochemical plants, cement plants and other sources, compressing the carbon dioxide and transporting it to a storage site, where it is injected into a suitable geologic formation for long-term storage.
The costs and potential liabilities associated with CCS have discouraged widespread adoption. Project developers require a legal and regulatory framework that addresses difficult questions around the liabilities associated with carbon dioxide transportation and storage, the ownership of the subsurface area (or pore space) used for geologic storage, the competing rights of mineral owners and mineral lessees, and the regulation of geologic storage operations.
Laws relating to the injection and geologic storage of carbon dioxide exist in several states, including Illinois, Kansas, Oklahoma, Louisiana, Montana, North Dakota, Texas, West Virginia and Wyoming. This model state legislation draws from these existing state laws where appropriate. The model state law also takes into consideration federal laws and programs related to underground injection programs.
Key issues to be addressed in this model state legislation include: long-term liability, including where liability is transferred; financial responsibility through instruments such as trusts, letters of credit, bonds or insurance contracts; rights to pore space; mineral rights v. carbon dioxide storage rights; ownership of injected carbon dioxide; and the intersection of state and federal programs, including the EPA’s Underground Injection Control Program.
The principal drafter of this measure was Michael Cline, Esq. Legal Counsel at Gaffney, Cline & Associates. Peer reviewing was contributed by Michael Craig, Ph.D, Assistant Professor of Energy Systems at the School for Environment and Sustainability at the University of Michigan and co-author of LPDD Chapter 28, on which the proposal is based, and Esmeralda Colombo, Ph.D, LL.M.