THE ENVIRONMENTAL IMPACT OF INDUSTRIAL CARBON CAPTURE IN LOUISIANA: HOW PRIVATE LANDOWNERS CAN SEEK COMPENSATION.

• Author: Acharya, Maya

1. Introduction 34 II. Background 36 A. CCS Technology Development 36 B. CCS and the Law 38 1. Expropriation 38 2. Liability 40 III. CCS and the Environmental Impact of Pipeline Development in the Mississippi Delta 41 A. The Environmental Impact of Pipelines 41 B. CCS Potential Environmental Impact 42 IV. Lawsuits Challenging Environmental Harm 43 A. Obligations of Vicinage 44 1. Article 667 45 2. Article 669 47 B. Breach of Contract Claim - Predial Servitudes and Right of Use 49 1. Can CCS development occur on a preexisting pipeline servitude? 50 2. Newly contracted CCS Servitudes 51 a. Recommendations for Contracting 52 b. When to Bring Suit 52 V. Recommendations for CCS Development in Louisiana 53 VI. Conclusion 53 I. Introduction

   Global climate change is an existential threat to the livelihoods of Louisiana's residents and the future of Louisiana's coastal industries. On August 26, 2021, Hurricane Ida transformed 106 square miles of coastal wetland into open water within 24 hours. (1) That loss is approximately half of the 200 square miles destroyed during Hurricane Katrina and Rita in 2005. (2) Since the industrial revolution, increased carbon emissions have been irrefutably linked to increased global climate change. (3) Louisiana's unique ecology makes it especially susceptible to the effect of sea level rise and extreme weather patterns. One-third of the state's area is made up of fresh and saltwater wetlands and on average, Louisiana is only 100 feet above sea level. (4) Fishing, tourism, agriculture, and extractive industries rely on the maintenance of the Mississippi delta region. (5) The wetlands also provide a critical storm buffer between the Gulf of Mexico and coastal cities. (6) Despite this vulnerability to the effects of climate change, Louisiana has one of the largest carbon footprints in the country. (7)

   Louisiana lawmakers face a pressing question of how to reduce Louisiana's enormous carbon output. Louisiana alone produces approximately 4.4% of total carbon emissions in the United States, largely due to the presence of chemical, petroleum, and natural gas industrial processing throughout the state. (8) Compared to other states, Louisiana is ranked 5th for total C[O.sub.2] emissions and has the 2nd largest total energy consumption per capita. (9) Louisiana's industrial sector accounts for one-fifth of the nation's crude oil refining capacity and produces more than 50% of the liquified natural gas exported by the United States. (10)

   In 2021, the Governor of Louisiana, John Bel Edwards, created a task force to investigate the best paths forward to achieve Louisiana's goal of becoming carbon net zero by 2050. (11) The task force consists of scientists, environmental law experts, lawmakers, and industry experts, some of whom are advocating for increased funding in carbon capture and sequestration technology ("CCS"). (12)

   CCS is a generalized term to describe technology developed to capture carbon emissions and transport these emissions into underground reservoirs. (13) Although not yet tested on a large scale, this technology aims to directly reduce global C[O.sub.2] levels by capturing carbon emissions from the atmosphere and industrial sources. (14) The captured emissions would be transported through pipelines and injected into underground reservoirs indefinitely or reused in other sectors. (15) This paper will focus on CCS related to the capture of emissions from industrial sources with the intent of sequestering it permanently underground.

   Advocates of CCS technology assert that Louisiana is uniquely situated to be an excellent candidate for CCS development as it has suitable geological reservoirs for carbon sequestration and preexisting infrastructure to access them. (16) CCS is beneficial as it would maintain and potentially expand the economically critical oil and gas industry while rendering it a minimal producer of carbon. (17) Opponents of CCS argue that the technology is unproven and a waste of resources, despite the present juncture of potential climate catastrophe. (18) Critics note that this technology has not been tested at the scale imagined, and investment in CCS development would take funding away from proven methods of reducing carbon emissions such as investing in non-fossil-fuel technology. (19)

   Funding for CCS may prove to be transformative to Louisiana's path to carbon net zero, but its development is impeded by the extensive infrastructure required for it to function. To move forward with this technology, lawmakers should consider how this infrastructure will affect the land it is built on and the public's reaction to this technology.

   This paper will focus on the legal implications of developing CCS technology on the preexisting oil pipeline routes in Louisiana. Specifically, it will address what potential environmental impacts this technology will have, and the feasibility of its development based on case law.

2. Background

   1. CCS Technology Development

      The goal of CCS technology is to collect carbon dioxide (C[O.sub.2]) in the atmosphere or from an industrial point source and reuse or sequester the C[O.sub.2] in underground reservoirs. (21) The C[O.sub.2] is captured and compressed to "1,200 psi to 2,200 psi" transforming it to a supercritical state. (22) In this form, the C[O.sub.2] can be transported through specially pressurized pipelines into reservoirs (23) or geological sinks. (24) These "sinks" will be chosen depending on a variety of factors including ease of access and how suitable they are for storing C[O.sub.2] indefinitely. (25)

      Louisiana's infrastructure and geology make CCS development more feasible here than in other parts of the country. Notably, Louisiana's C[O.sub.2] output is largely a byproduct of the industrial sector. (26) The industrial sector produces approximately 58% of Louisiana's carbon emissions, mostly from chemical manufacturing and petrochemical production and refinement. (27) Equipping the industrial sector with CCS technology would dramatically reduce Louisiana's carbon output and render the industry much less harmful to the environment. (28) Furthermore, Louisiana has natural geological sinks that would be suitable for carbon sequestration. (29) These underground reservoirs exist because of past oil or gas extraction and therefore are connected to existing pipelines which oil companies could retrofit from extractive technology to sequestration technology. (30) Despite these favorable conditions, CCS technology may face daunting challenges in its development due to technological and legal constraints.

      The initial costs, particularly C[O.sub.2] pipeline development, pose a significant barrier to the development of this technology. (31) Although there are extensive pipeline networks throughout Louisiana due to the pressurized nature of the sequestered C[O.sub.2], new pipelines will have to be manufactured and installed. (32) A study from Louisiana State University found that by repurposing the preexisting pipelines in a designated area, "only 1.4 percent of the eligible 5,112 pipeline segments in the region could support conversion to carbon transportation." (33) CCS pipelines would have to withstand immense pressure (34) and travel long distances into appropriate geological sinks. (35)

      Like the preexisting gas and oil pipelines, structural failure of CCS pipelines could have catastrophic environmental impacts. (36) Due to the pressurized and cooling nature of the captured C[O.sub.2], a pipeline failure could result in "escaping fluid... [which could] form a very cold jet denser than the surrounding air covering distances of several kilometres or a solid discharge with its own characteristic hazards such as [] erosion of surrounding equipment." (37) CCS pipelines create uncharted risks such as explosions, undetectable leaks, (38) and general environmental erosion where the pipes are laid. (39)

      Aside from the initial costs of collecting, transporting, and storing C[O.sub.2], there is still some uncertainty on whether the stored C[O.sub.2] would remain in the geological sinks. (40) This technology has not been tested in the long term, so it is difficult to predict the environmental impacts that carbon sequestration will have on the lands where carbon is injected and whether the C[O.sub.2] will migrate to other areas underground or cause environmental contamination of underground resources. (41)

      These potential risks may severely hamper public support of CCS development, particularly from people who live on or near land where this infrastructure will be implemented. To preempt liability issues and land disputes, the legislature passed statutes which lay the foundation of how CCS technology may be implemented.

   2. CCS and the Law

      Considering the unprecedented issues CCS technology poses, the Louisiana legislature has enacted legislation to address some legal considerations for moving forward with the large-scale development of this technology. In 2009, the legislature passed Louisiana Revised Statute 30:1102 declaring "geological storage of carbon a 'public interest'" because of its potential to "benefit the citizens of the state and the state's environment by reducing greenhouse gas emissions." (42) This statute declared the Commissioner of Conservation to have "jurisdiction and authority over all persons and property necessary to enforce effectively the provisions [] relating to the geological storage of carbon dioxide." (43) By declaring CCS a public interest, the legislature has shown its support of the technology and aligning CCS funding with the goals of reducing Louisiana's industrial carbon output.

      1. Expropriation

         Most critically, the legislature has indicated its willingness to see large-scale CCS development by allowing CCS companies to use the power of expropriation (also referred to as eminent domain) to take privately owned land for CCS development. (44) Expropriation is the right of the state, or some private...