Coal-fired power plants are major sources of carbon dioxide (CO2) in the atmosphere. Atmospheric CO2 has been identified as a cause of global warming. On-shore geologic sequestration (OSGS) is a relatively new technology that may be used to reduce atmospheric accumulations of CO2 from coal-fired power plants. OSGS involves capturing, compressing and injecting CO2 deep into the earth and storing it for hundreds or thousands of years or longer. Although the United States Supreme Court's decision in Massachusetts v. EPA2 may accelerate interest in or the need for CO2 capture and sequestration, there are no federal or state laws or regulations specifically designed to regulate OSGS, and legal uncertainty could hinder its development and deployment.3
Based on current law, members of the coal-based power industry and owners and operators of OSGS facilities may face excessive liability that provides little additional protection of public health and the environment. A risk-based approach to regulating OSGS4 is recommended herein to balance legal requirements with the possible risk of harm that may arise from OSGS and to improve legal certainty for those considering its use. Risk-based regulation is the establishment of performance requirements and criteria that correlate directly with the probability and magnitude of foreseeable harm that arises, or that may arise, from a particular site or activity. Risk-based regulation demands stricter requirements where risks are higher. It will provide a sliding scale in which limits on CO2 injection and storage at a particular location may tighten or relax based on advancements in technology and understanding of OSGS and the subsurface.5 By developing a tailored, streamlined and flexible framework of environmental regulations to control OSGS facilities, Congress could efficiently limit long-term liability while still providing strong protection of human health and the environment.
Injecting vast quantities of supercritical6 CO2 underground involves inherent risks. Some risks may be minimal, while others could be significant. However, OSGS may be essential to maintain worldwide energy production while protecting human health and the environment from excess CO2 in the atmosphere. The balance between potential public benefits derived from atmospheric protection and risks involved in OSGS must be weighed carefully. Both federal and state laws need to provide clear guidance to the energy industry to move forward with OSGS projects. New laws need to protect human health and the environment, but should also limit disparity between jurisdictions and uncertainty.7
Current laws, such as the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),9 could stifle otherwise beneficial uses of OSGS if owners and operators are unnecessarily subjected to severe operational restrictions and unlimited, long-term liability. Recent developments in energy law do not address needed legal considerations for OSGS. The Renewable Fuels, Consumer Protection and Energy Efficiency Act of 2007 addresses carbon capture and storage, but does not change either the potentially unduly restrictive application of the hazardous waste aspects of the RCRA nor the potentially unlimited long-term liability imposed under the CERCLA.10
To advance the policy of risk-based regulation, Congress should consider exempting injected CO2 from potential regulation as a RCRA hazardous waste,11 if applicable in the first instance, and should consider limitations on long-term liability. While states may remain legal laboratories,12 the federal government should provide guidance in new OSGS legislation to limit disparate jurisdictional treatment. The overarching goal of protecting public welfare by ensuring that CO2 injected into the subsurface does not harm human health or the environment can effectively be accomplished by using the recommended risk-based approach. …