Paving the Legal Path for Carbon Sequestration from Coal

Article excerpt

I. INTRODUCTION

Of the many environmental and natural resource challenges that face President Obama, a large one has received scant attention from environmental scholars: coal. In the environmental community, coal--dirty, polluting coal--is more of an epithet than a resource. It has been the bane of environmentalists since the early days of the Clean Air Act, (1) and its reputation has only gotten worse with the recognition that carbon dioxide (C[O.sub.2]), a major cause of climate change, is produced by coal at a higher ratio per energy output than other fossil fuels) Many environmental organizations propose eliminating coal entirely from our energy mix. (3) However, coal represents forty-nine percent of the Unites States' existing electric-generating capacity, and will likely remain an important source of energy in the near and intermediate term. (4) Even more importantly, the Intergovernmental Panel on Climate Change (IPCC) predicts that fossil fuels (primarily coal) will dominate world energy until at least the middle of the next century. (5) Of particular concern is the fact that China, the world's largest emitter of greenhouse gases (GHGs), (6) depends heavily on coal-fired generation, and has relatively more coal than other energy sources to exploit in its continued meteoric growth. (7)

Additionally, in the absence of federal policy on controlling GHGs, much uncertainty surrounds whether and to what extent coal-fired generation can be permitted at all. There have been many instances of state utility regulators, legislators, and governors vetoing the permitting of new coal-fired electricity generating facilities; (8) and the Environmental Protection Agency (EPA) appeals board recently denied a permit for a new coal-fired plant because the permitting region, Region 8, had not set out a reasoned opinion on whether C[O.sub.2] is a "pollutant subject to regulation" under the Clean Air Act. (9) While these rejections of coal-fired power may be appropriate responses to the linkage between coal-fired power and GHG production, without being a part of a larger energy plan, they may lead to energy shortages and other unintended consequences. According to the International Energy Agency's 2008 Energy Technology Perspectives Executive Summary, coal will continue to be part of a future energy mix, and carbon capture and storage will generate approximately nineteen percent of the GHG reductions necessary to stabilize atmospheric concentrations of carbon dioxide at 450 parts per million (ppm). (10)

Therefore, it will be imperative for President Obama to figure out what role coal will play in our nation's future energy mix, and what role coal will have in other countries, since coal will continue to impact worldwide emissions of GHGs. Given the "Scylla" of increasing GHGs and the "Charybdis" (11) of the need to replace almost half of the United States' and the world's energy production if coal is banned, it is imperative that the United States move toward either reducing coal usage as quickly as possible around the world by ramping up other cost-effective energy sources, or figuring out a way to continue to produce coal-based electric power while drastically reducing GHG emissions.

The option that has received the most attention is the latter, particularly in finding a way to sequester the carbon dioxide produced by coal-fired emissions and prevent it from entering the atmosphere and contributing to increasing GHGs. This process, referred to as carbon capture and storage (CCS), can potentially remove eighty to ninety-five percent of the C[O.sub.2] emitted from electric power plants. (12) Though C[O.sub.2] is routinely injected underground to aid in recovery of oil, and though large-scale underground sequestration sites have been identified in the United States, (13) there is not yet a commercial-scale C[O.sub.2] sequestration facility attached to a large coal-fired power plant. (14) Therefore, most of the research on this issue has focused on the technical and economic difficulties of cost effective CCS. …