CHASING SQUIRRELS IN THE ENERGY TRANSITION.

• Author: Payne, Heather

1. INTRODUCTION 238 II. ENGINEERING AND RISK 241 A. How Carbon Capture and Sequestration Works 242 B. Global Potential, Current Projects, and Challenges 245 1. Global Potential and Current Projects 245 2. Challenges 247 C Risks 250 1. Asphyxiation and Other Health Risks 250 2. Climate Change 252 3. Water Quality and Quantity 252 4. Land Use, Soil Fertility, and Other Challenges 254 III. COSTS AND IMPACTS ON CONSUMERS 255 A. Alternatives for Electricity Generation 255 B. Costs to Ratepayers 256 C. Industrial Processes 258 IV. LIABILITY, MORAL HAZARD, AND LESSONS FROM PRICE- ANDERSON 259 A. Potential Liability Paradigms 259 1. Negligence 260 2. Trespass 264 3. Nuisance 265 4. Underground Injection Permit Program 266 5. Liability Cap (Price-Anderson-like Paradigm) 268 6. Strict Liability 270 B. Moral Hazard and Lessons from the Price-Anderson Act 273 V. ADOPTION OF STRICT LIABILITY 276 VI. CONCLUSION 278 I. INTRODUCTION

   Carbon dioxide has long been used to euthanize laboratory rodents and other small animals, a practice animal welfare organizations now consider inhumane due to the suffering the gas inflicts on the animals.... As C[O.sub.2] concentrations get higher and exposure times longer, the gas causes a range of effects from unconsciousness to coma to death. (1)

   There are currently only three places where the natural, spontaneous release of supersaturated carbon dioxide (2) can kill: Lakes Nyos and Monoun in Cameroon and Lake Kivu in Rwanda. (3) In 1984, sudden outgassing (4) killed thirty-seven people at Lake Monoun. (5) Two years later, Lake Nyos released 1.6 million metric tons of CO2 and killed 1,746 people and 3,500 livestock by asphyxiation. (6) These three locations may be the only places on the planet where death due to carbon dioxide asphyxiation is a natural possibility; however, should the practice and implementation of carbon capture and sequestration (CCS) (7) become widespread, many more locations would have the potential to release large amounts of CO2, akin to what occurs in these lakes. (8) Accordingly, as CCS is implemented, the number of humans and animals who could suffer from such a release likewise becomes significantly larger.

   The risks associated with the release of carbon dioxide from carbon dioxide pipelines are already apparent, as the residents of Satartia, Mississippi found out last year. When the carbon dioxide pipeline running through the town ruptured, "people were inside the cloud, gasping for air, nauseated and dazed. Some two dozen individuals were overcome within a few minutes, collapsing in their homes; at a fishing camp on the nearby Yazoo River; in their vehicles." (9) Forty-nine were hospitalized, and many have continuing health problems because of the event. (10) The local emergency management director claimed that the town "got lucky" and had the rupture occurred with other atmospheric conditions or at another time of day, there "would have [been] deaths." (11)

   The counterpoint to this risk, of course, is climate change. Due to the global lack of action on emissions that cause climate change, (12) more extreme options such as geoengineering, direct air capture, and CCS are being touted as both necessary and a way to enable the world to continue utilizing fossil fuels into the future. The policy rationale is beguilingly simple: we cannot transition away from fossil fuels fast enough, and therefore we must find a way to minimize the carbon that is released into the atmosphere.

   The most recent U.N. Intergovernmental Panel on Climate Change report amply demonstrates that we have much more to do to minimize the impacts of climate change. (13) The science is clear: human activity, and specifically the burning of fossil fuels, is responsible for the atmospheric changes we are all experiencing. (14) There is broad agreement that we must act; the disagreements are around what to do, who should do what, and who should pay for those actions (or lack of action, in some cases).

   The lack of consensus and definitive action to address climate change allows various actors to support pathways that maximize the continuing commercial viability or minimize adverse impacts on their business, regardless of whether that "preferred" pathway is a meaningful way to reduce the planetary crisis or is simply a distraction to delay consequential action. Scholars have provided different rationales to support the use of CCS and, therefore, what type of legal regime should exist. (15) However, while needing to take action to minimize climate change is often the reason given for the use of CCS, these discussions typically lack specificity around three questions: 1) How does CCS compare to other options for achieving the same goals? 2) What liability regime should govern the use of CCS? And 3) what Conflicts of interest and moral hazards should we address when determining that liability?

   To more fully answer these questions, this Article first discusses the engineering behind CCS, including current projects and the potential for CCS adoption. It then discusses the risks of widespread CCS deployment, specifically to human health and the environment. Part III discusses the most likely uses for CCS and how CCS compares to other options for achieving the same goals, especially the replacement of fossil fuels in electricity generation and the impact on ratepayers. Part IV introduces various liability paradigms that could be used for CCS, as well as the moral hazard considerations that should be understood as part of any policy and why a Price-Anderson-type of liability-limiting scheme should not be adopted. Part V concludes that strict liability will strike the best balance and minimize the use of CCS to only those instances where it is truly cost-effective while maintaining the appropriate focus on long-term sequestration.

2. ENGINEERING AND RISK

   CCS has been defined as "a process consisting of the separation of CO2 from industrial and energy-related sources, transport to a storage location and long-term isolation from the atmosphere." (16) While three terms are typically used interchangeably--CCS; carbon capture and storage (also referred to as CCS); and carbon capture, utilization, and storage (CCUS)--they do imply different things. For the purposes of this Article, the author uses carbon capture and sequestration intentionally. Sequestration identifies something to be withdrawn. If CCS is to be meaningful for climate purposes, we must sequester the carbon--withdraw it permanently from the atmosphere. Storage, on the other hand, means "the putting and keeping of things in a special place for use in the future." (17) There can be no doubt that in certain applications--like enhanced oil recovery--carbon dioxide is indeed captured and stored. But the carbon dioxide is then used to produce more fossil fuels, and this "enhanced oil recovery produces more emissions than it sequesters." (18) Storage--and later use--is not what the climate needs. The climate needs sequestration of carbon. Similarly, CCUS proponents would argue against the permanent sequestration of carbon, rather supporting utilizing the carbon and storing it until it is ready to be released as it suits the entity controlling it.

   These may seem like semantic differences, but given the current uses of carbon dioxide, they are not. This Part, therefore, discusses how CCS works, current CCS projects, global CCS potential, and risks associated with CCS technology.

   1. How Carbon Capture and Sequestration Works

      CCS works the same way regardless of which industry the carbon dioxide has been produced within. Because electricity generation is one major industry where CCS is being contemplated, this discussion will use electricity generation as an example of how CCS works.

      Carbon dioxide is produced during the electricity generation process when fuel containing carbon is burned. (19) The process of electricity generation from fossil fuels is as follows: fuel (coal, natural gas, or oil) is burned, releasing carbon dioxide, hydrogen (or water), other by-products, and heat. (20) The heat generated converts water to steam in a boiler, and that steam then turns a steam turbine. (21) The turning steam turbine is connected to a generator, which generates the electric current. (22) The steam from the turbine is condensed back into liquid water, and, as it exists within a closed-loop system, it returns to be heated and turned into steam again. (23)

      Before the carbon can be sequestered, it must be separated from other components and captured. There are three possible ways to capture carbon during the electricity generation process: post-combustion, oxyfuel, and pre-combustion sequestration. (24) Post-combustion is best suited for currently-operating plants, as this process removes the C[O.sub.2] after the fossil fuel is burned; it can therefore be more easily added onto existing facilities. (25) Oxy-fuel technology ensures no by-products, leaving only water vapor and C[O.sub.2] after the combustion process, thereby allowing efficient separation of C[O.sub.2]. (26) The final technology is pre-combustion, which pre-treats the fuel to pure C[O.sub.2] and hydrogen, and separation occurs before the hydrogen is burned. (27)

      Once the carbon dioxide has been captured, it must be transported and then permanently sequestered. (28) Three main geologic formations have been identified as theoretically possible storage locations: depleted oil and gas fields, saline aquifers, and coal bed seams. (29) Using depleted oil and gas fields would entail filling the spaces left vacant from pumping oil and gas with liquid, pressurized carbon dioxide. (30) Carbon dioxide has been used in oil and gas fields to aid in enhanced oil recovery, but the carbon dioxide escapes into the atmosphere after injection. (31) Methods that allow carbon dioxide to escape may qualify as carbon capture and storage and CCUS but do not qualify as CCS, which requires long-term isolation of carbon...