Sequestering Carbon Dioxide Undersea in the Atlantic: Legal Problems and Solutions.

• Author: Webb, Romany

TABLE OF CONTENTS INTRODUCTION I. REGULATORY JURISDICTION OVER OFFSHORE CCS A. International Legal Framework B. U.S. Jurisdictional Areas 1. State Waters 2. Federal Waters C. Areas Beyond U.S. Jurisdiction II. REGULATION OF OFFSHORE CCS A. Federal Regulation B. International Law III. DRILLING CARBON DIOXIDE INJECTION WELLS A. Drilling in Federal Waters 1. Leasing Land for Drilling a. Leases for New Drilling Operations b. Leases for operations using Existing Facilities 2. Installing Drilling Platforms in the Lease Area 3. Design of the Drilling Platform 4. Conduct of Drilling Activities 5. Well Design Requirements B. Drilling on the High Seas 1. Installing Drilling Platforms on the High Seas IV. TRANSPORTING CARBON DIOXIDE TO THE WELL SITE A. Onshore Transportation 1. Pipeline Transportation a. Constructing New Pipelines (1) Pipeline Siting (2) Pipeline Design b. Repurposing Existing Pipelines 2. Road and Rail Transportation B. Offshore Transportation 1. Pipeline Transportation a. Pipeline Construction in State Waters (1) Pipeline Siting (2) Pipeline Design b. Pipeline Construction in Federal Waters (1) Pipeline Siting (2) Pipeline Design c. Pipeline Construction on the High Seas (1) Ship Transportation 2. Transporting Carbon Dioxide in U.S. Waters a. Transportation on the High Seas b. Storage During Transportation V. INJECTING CARBON DIOXIDE AT THE WELL SITE A. Requirements for Carbon Dioxide Injection 1. Carbon Dioxide Purity B. Reporting on Injection 1. Additional Requirements for Operations in Federal Waters 2. Additional Requirements for Operations on the High Seas C. Post-Injection Site Closure and Monitoring 1. Operations in Federal Waters 2. Operations on the High Seas D. Controlling Leaks from Carbon Dioxide Injection Wells E. Decommissioning Offshore Installations CONCLUSION INTRODUCTION

The 2014 National Climate Assessment concluded that average temperatures in the U.S. have increased by up to 1.9[degrees] F since 1895 and may rise an additionaluy 4[degrees] F in coming decades. (1) This is primarily due to the emission of greenhouse gases which trap heat in the earth's atmosphere, causing surface temperatures to rise. (2) The most important greenhouse gas is carbon dioxide, which is emitted in larger quantities, and remains in the atmosphere longer, than other major heattrapping gases. (3)

Carbon dioxide emissions primarily result from the burning of fossil fuels--coal, oil, and natural gas--in electricity generation and other applications. (4) Seeking to reduce emissions, many policymakers have called for the replacement of fossil fuels with lower-carbon alternatives. Although some progress has been made, a complete phase-out of fossil fuels would be difficult, at least in the short- to medium-term. Some researchers have therefore begun investigating other emission-reduction strategies. One such strategy involves capturing carbon dioxide at its source before it is released into the atmosphere. The captured carbon dioxide could then be used in some way or injected into underground geologic formations for the purposes of permanent storage ("carbon dioxide capture, utilization, and storage" or "CCUS").

Currently, in North America, only small amounts of carbon dioxide are captured prior to release. Almost all of this captured carbon dioxide is used for "enhanced oil recovery" (EOR), whereby it is injected into oil wells for the purpose of maintaining formation pressure (i.e., to replace oil and water that have been pumped out of the well). However, carbon dioxide could also be injected underground for the purpose of disposal (unrelated to EOR). This is known as carbon dioxide capture and storage (CCS). To date, most CCS research has focused on the possibility of injecting carbon dioxide into onshore geological formations, such as depleted oil and gas reservoirs and deep saline aquifers. However, there is growing interest in the possibility of injecting carbon dioxide offshore, into geological formations underlying the seabed.

From a public policy perspective, offshore CCS has a number of advantages over onshore alternatives. Most notably, locating injection sites offshore keeps them away from populated areas, reducing risks to public safety and the potential for public opposition. (5) However, offshore injection is not without difficulties. Offshore injection is likely to be costly, as it necessitates the building of complex drilling platforms and/or other structures at sea, as well as an extensive transportation system to deliver carbon dioxide to the injection wells. (6) There are also significant associated regulatory risks, as there is currently no comprehensive legal framework for offshore carbon dioxide injection. (7) Most offshore injection operations are regulated under a patchwork of laws developed with other activities in mind and, as a result, are often poorly suited to CCS.

This article examines the regulatory framework for offshore CCS along the Northeastern U.S. coast. The Introduction and Part Regulatory Jurisdiction over offshore CCSi of the article provide a general overview of the regulatory regimes governing offshore CCS, under both U.S. and international law. The subsequent parts then explore the regimes in more detail and discuss their application to specific aspects of CCS. Part III focuses on injection well construction, outlining the regulatory requirements for installing offshore platforms and drilling wells. The regulatory regime governing the transport of carbon dioxide to the well site--by pipeline, road, rail, and/or ship--is examined in Part IV. Lastly, Part V discusses the regulation of carbon dioxide injection at the well site.

1. REGULATORY JURISDICTION OVER OFFSHORE CCS

   The regulation of any future carbon dioxide injection project will depend on its location. under international law, offshore areas are divided into several distinct zones, each with a different regulatory status. These various zones are discussed in this part.

   1. International Legal Framework

      Jurisdiction over offshore areas is determined under the principles of international law as set out in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). (8) Under UNCLOS, each country has jurisdiction over areas within 200 nautical miles (n.m.) of its shores, and further in certain circumstances (see Table 1 below). Areas more than 200 n.m. offshore are not subject to the jurisdiction of any country, but rather form part of the high seas, which are open to use by all countries in accordance with international law. (9)

      8 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. The U.S. has not ratified UNCLOS, but recognizes most of its provisions, including those discussed in this part, as forming part of customary international law.

   2. U.S. Jurisdictional Areas

      Consistent with UNCLOS, the U.S. has claimed jurisdiction over all waters up to 200 n.m. from its coast ("U.S. waters"). (19) Jurisdiction is shared between the states, which have title to areas within three n.m. of shore (and further in certain circumstances), and the federal government, which has title to areas further offshore.

      1. State Waters

         In the U.S., each coastal state has regulatory authority over the waters adjacent to its land, known as "state waters." The Submerged Lands Act of 1953 (SLA) extended the boundaries of each coastal state to three n.m. from its coastline, except for Texas and the west coast of Florida, where the SLA extended state boundaries to nine n.m. from the coastline. (20) For the purposes of the SLA, a state's "coastline" is defined as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." (21)

         The SLA confirms that each coastal state has title to, and ownership of, all lands beneath navigable waters within its boundaries. (22) All natural resources within those lands and waters, including minerals, marine animals, and plant life, are also owned by the state. (23) The federal government has relinquished all of its rights to, and interests in, the land and resources within state waters (though it retains regulatory jurisdiction). (24)

      2. Federal Waters

         Along the Northeast coast, federal waters begin three n.m. from the coastline (as defined in the SLA) (25) and extend to the edge of the EEZ, located 200 n.m. from the baseline specified in UNCLOS. (26) The normal "baseline" used for measuring the EEZ is the low-water line along the coast. (27) In some instances, however, the baseline may be adjusted based on geological factors such as the nature of the coastline and/or the presence of reefs thereon. (28)

         The federal government has title to offshore land, comprising the subsoil and seabed of the "outer continental shelf' (OCS). The federal Outer Continental Shelf Lands Act (OCSLA) defines the OCS as those "submerged lands lying seaward and outside of the area [subject to state jurisdiction]... and of which the subsoil and seabed appertain to the U.S." (29) As noted in I.B.1, state jurisdiction typically ends three n.m. from shore (except in Texas and on the west coast of Florida, where it ends nine n.m. from shore), at which point the OCS begins. The OCS extends to the seaward limit of U.S. jurisdiction, defined under international law as the farthest of:

         * 200 n.m. from the baseline (normally the low-water line along the coast); or

         * if the continental margin (30) exceeds 200 n.m., a line:

         ** 60 n.m. from the foot of the continental shelf; or

         ** beyond the shelf foot where the sediment thickness is 1 percent of the distance thereto. (31)

         The OCS cannot, however, extend more than 350 n.m. from the baseline or 100 n.m. from the 2,500 meter isobath (a line connecting the depth of 2,500 meters). (32)

   3. Areas Beyond U.S. Jurisdiction

      U.S. jurisdiction over offshore waters only extends to the outer edge of the EEZ, or 200 n.m. from the baseline...