Legal Pathways to Widespread Carbon Capture and Sequestration
| Date | 01 December 2017 |
| Author |
47 ELR 11022 ENVIRONMENTAL LAW REPORTER 12-2017
A R T I C L E S
Legal Pathways
to Widespread
Carbon Capture
and
Sequestration
by Wendy B. Jacobs and Michael Craig
Wendy B. Jacobs is Clinical Professor of Law and
Clinic Director of the Emmett Environmental Law and
Policy Clinic at Harvard Law School. Michael Craig
is a Ph.D. candidate in the Engineering and Public
Policy department at Carnegie Mellon University.
Despite competing views about climate change policy,
the time is ripe to drive carbon capture and sequestra-
tion (CCS) forward. National and state investment in
and support of CCS are completely consistent with
the Donald Trump Administration’s goals to invest in
infrastructure projects, continue U.S. reliance on fos- continue U.S. reliance on fos-continue U.S. reliance on fos-
sil fuels, and create jobs. is Article, excerpted from
Michael B. Gerrard & John C. Dernbach, eds., Legal
(forthcoming in 2018 from ELI), addresses the use of
CCS to achieve signicant reductions in emissions
of carbon dioxide to the atmosphere by 2050, and
explains why its widespread adoption in the United
States has not yet occurred. e authors describe the
potential of CCS for achieving deep decarbonization
of the U.S. power sector, explain the key components
of CCS, a nd identify and recommend several federal
and state legal reforms necessary to drive it forward.
I. Introduction
According to the Deep Decarbonization Pathways Proj-
ect (DDPP)1 and the United States Mid-Century Strategy
for Deep Decarbonization issued by the White House in
November 2016,2 carbon capture and sequestration (CCS)
can play a major role in reducing greenhouse gas (GHG)
emissions in the United States by 80% by 2050. CCS tech-
nology has been the subject of years of study a nd is in use
as of July 2017 at 17 large-scale industrial and power gen-
erating facilities in the United States and elsewhere, with
another three facilities expected to come online by 2018.3
Studies have conrmed that most major point sources of
carbon dioxide emissions in the United States are situated
within a manageable distance from areas that could host
pipelines and sequestration facilities.4
1. J H. W ., E E E-
, I. ., US 2050 R: P D D
U S 16-17 (2014) (describing four scenarios in which
greenhouse gas (GHG) emissions are decreased by 80% in the United States
by 2050, two of which include carbon capture and sequestration (CCS);
the other two scenarios focus on renewable and nuclear energy. Of the two
scenarios that include CCS, under the Mixed Scenario, CCS would be de-
ployed at new NGCC units, which would account for roughly 13% of elec-
tricity generation in 2050 (36, g. 29). Under the High CCS Scenario, CCS
would be deployed rst at new coal-red plants and later at new NGCC
plants, which would collectively account for nearly 60% of electricity gen-
eration in 2050 (id.)).
2. T W H, U S M-C S
D D (2016).
3. Global CCS Institute,
(showing 17 operational plants globally), https://www.globalccsinstitute.
com/projects/large-scale-ccs-projects (last visited Sept. 23, 2017). e
three facilities expected to come online by 2018 are the Gorgon Carbon
Dioxide Injection Project in Australia, and two projects in Alberta, Can-
ada, associated with the Alberta Carbon Trunk Line. Global CCS In-
stitute, , https://www.
globalccsin stitute.com/proje cts/gorgon-carbon -dioxide-injectio n-project
(last updated June 20, 2017), Global CCS Institute,
-
2 , https://www.globalccsinstitute.com/
projects/alberta-carbon-trunk- line-actl-north-west-sturgeon-rene ry-co2-
stream (last updated Aug. 22, 2017), and Global CCS Institute,
2,
https:// www.globalcc sinstitut e.com/pro jects/al berta-ca rbon-tru nk-line-
actl-agrium-co2-stream (last updated Aug. 22, 2017). e Kemper County
integrated gasication combined-cycle (IGCC) project was expected to be
operational in 2017, but operations and startup activities were suspended
in June 2017. Southern Co. & Mississippi Power Co., SEC Form 8-K,
Current Report 4 (June 28, 2017), https://d18rn0p25nwr6d.cloudfront.
net/CIK-0000092122/98f6dd3e-1d59-4284-be58-88702a3702e1.pdf.
also Ryan L. Nave, ,
M. T, June 28, 2017, https://mississippitoday.org/2017/06/28/
mississippi-power-co-to-suspend-kemper-coal-operations/.
4. U.S. E P A (EPA) R I
A F S P G
G E F N, M, R S
S: E U G U 5-17, n.21 (2015) (EPA-
452/R-15-005); see J J. D, C D C
G S 29 (2006) (noting that 95% of the 500 largest exist-
ing carbon dioxide point sources are located within 50 miles of a possible
geologic sequestration reservoir); J K, T F C 58
(2007); James J. Dooley et al., 2-
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
12-2017 NEWS & ANALYSIS 47 ELR 11023
Widespread adopt ion of CCS in the United States has
not oc curred for four major reason s. First and foremost
is cost : both the hi gh cost of capturing and compressing
carbon d ioxide at power plants, a nd the uncertain extent
of potential liability and cost associated with seque stra-
tion. Federal and state leg al reforms can overcome t his
hindrance, as spelled out in t his Ar ticle. e second
major obstacle is t he absence of a strong national legisla-
tive or policy driver. A national price or cap on carbon
dioxide emissions would drive the technology forward
in applications across multiple indu strial sectors in the
United States.
e third hurdle to widespread adoption of CCS has
been the persistently low price of natural gas combined
with the current federal regulatory regime, which together
incentivize near-term construction of natural gas plants
with no CCS. Given the low price of natural gas and the
absence of any national requirement (direct or indirect)
that natural gas combined-cycle (NGCC) plants use CCS,
construction of NGCC plants to replace coal-red plants
as baseload generators has been occurring and will contin-
ue.5 Absent prompt legal reforms, as suggested here, these
NGCC plants will be operational and emitting signicant
quantities of carbon dioxide for decades to come, under-
mining the ability of CCS to serve as a major contribu-
tor to carbon dioxide emissions reductions in the United
States. Retrotting these plants later will be more expen-
sive and inecient.6
Fourth, the existing pipeline infra structure for trans-
porting captured carbon dioxide from its source to suitable
sequestration facilities is insucient in location and size to
carry the qua ntity of carbon dioxide that a national driver
for capture would generate. Low oil prices pose a signicant
challenge to private investment in such pipelines, making
it uneconomic to transport carbon dioxide to existing oil
, in P 7 I C
G G C T 593 (Edward S. Rubin et
al. eds., Elsevier 2004).
5. U.S. Energy Information Administration (EIA), Natural Gas Expected
,
T E, Mar. 16, 2016, http://www.eia.gov/todayinenergy/de-
tail.cfm?id=25392; EIA, A E O 2017 tbl. 8 (2017),
https:// www.eia.gov/o utlooks/a eo/data/ browser/# /?id=8-AE O2017&ca
ses=ref2017&sourcekey=0; I S ., T B G, E-
N G R ERCOT—P IV 15 (2016)
(projecting that low natural gas prices could cause the retirement of more
than 60% of the Electric Reliability Council of Texas’ (ERCOT’s) coal-pro-
ducing plants by 2022), https://static.texastribune.org/media/documents/
FINAL_Brattle_TCEC_12_May_2016_with_appendix.pdf.
6. e National Energy Technology Laboratory (NETL) estimates that the
capture cost of a retrotted NGCC plant is $9/ton of captured carbon diox-
ide higher than that of a new NGCC plant built with capture equipment.
K G, NETL, NETL S E F
CO2 C R U.S. P P F 10 (2014),
https://netl.doe.gov/File%20Library/Resea rch/Energy%20Analysis/Publi-
cations/NETL-Retrots-Overview-2014-01-09-rev2.pdf.
elds for use to enhance oil recovery.7 Pipeline expansion is
stymied not only by cost, but also by public opposition and
a lack of coordinated regional approaches. ese barriers
can be addressed and overcome as suggested below.
us, signicant legal reforms that include a combina-
tion of nancia l incentives, ma ndates, and other forms of
government support are needed to drive full-scale diusion
of CCS technology in the United States.8 is Article rec-
ommends a variety of legal reforms to expand CCS deploy-
ment on coal-red and NGCC plants in line with DDPP
projections. e recommended reforms would not only
require the use of CCS at coal-red and NGCC plants,
but would also facilitate the sale of and help create markets
for the higher-cost electricity generated by plants equipped
with CCS, and would provide substantial investment in
CCS and its associated infrastructure.
Assuming the continued absence of federal legislation
that imposes a national cap or price on carbon dioxide
emissions, this Article suggests: (1)issuance of presidential
and g ubernatorial E xecutive Orders to create federal and
state markets for purchase of power generated by CCS-
equipped power plants; (2)enactment of federal and state
legislation to provide nancial incentives to spur capture of
carbon dioxide; (3)tightening of federa l and state regula-tightening of federal and state regula-tightening of federal and state regula-
tory requirements for new a nd existing sources to directly
or indirectly require widespread use of CCS; (4) action
by federal and state actors to streamline permitting and
improve interagency coordination; (5)expansion of pub-expansion of pub-expansion of pub-
lic-private partnerships to build out the existing pipeline
infrastructure (perhaps providing eminent domain author-
ity to install the pipelines needed to transport captured
carbon dioxide from early adopters of CCS to the proposed
federal sequestration sites); and (6)use of federal funds to
build and operate several sequestration facilities on feder-
ally owned lands located near existing or proposed large
sources of captured carbon dioxide with the federal gov-
ernment retaining the long-term liability associated with
permanent sequestration of the captured carbon dioxide.
Together with other federal and state nancial and reg-
ulatory incentives described below, these suggested legal
reforms could overcome the chief obstacles to CCS deploy-
ment in the United States and help achieve the economy-
wide 80% GHG emissions reductions needed to deeply
decarbonize the United States by 2050. e suggestions in
this Article build on lessons learned from the eorts to date
7. U.S. D E (DOE), S R C-
C, U, S I W
R 8 (2017) [hereinafter DOE W R].
8. Technology diusion brings costs down. Margaret R. Taylor et al., Regula-
2 Control, 27 L P’
348-78 (2005) (using the history of sulfur dioxide control to show that in-
creased diusion of technology results in signicant and predictable operat-
ing cost reductions in existing systems, as well as notable eciency improve-
ments and capital cost reductions in new systems).
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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