In conjunction with the Biden-Harris administration’s recent announcement of new agency actions to promote clean manufacturing, the Council on Environmental Quality (CEQ) on Feb. 16 published its Carbon Capture, Utilization, and Sequestration Guidance (“Guidance”) in the Federal Register. Unlike traditional legal guidance documents, the Guidance addresses multiple federal agencies and provides numerous recommendations for efficiently scaling carbon capture, utilization, and sequestration (CCUS) projects while ensuring robust tribal and community consultation, protection of natural resources and wildlife, and environmental justice.
Guidance Definition of Carbon Capture, Utilization, and Sequestration
The Guidance broadly defines CCUS as “a set of technologies that remove carbon dioxide from the emissions of point sources or the atmosphere, and either transport it, compress it, and inject it deep in the earth’s crust (and monitor sites to verify safe and secure storage operations), or transform it for use in industrial processes or as feedstock for useful commercial products.” In other words, for purposes of the Guidance, CCUS includes at-the-source and linear carbon dioxide pipeline projects, as well as projects related to carbon dioxide removal such as direct air capture and bioenergy with carbon capture and sequestration techniques.
Guidance on Optimizing the Permitting Process
Permitting CCUS projects that are federally funded or on federally managed land may implicate legal obligations under numerous federal statutes, including the National Environmental Policy Act (NEPA); the National Historic Preservation Act; the Clean Water Act; the Clean Air Act; the Safe Drinking Water Act; the Marine Protection, Research, and Sanctuaries Act; the Outer Continental Shelf Lands Act; the Endangered Species Act (ESA); the Marine Mammal Protection Act; the Migratory Bird Treaty Act; the Bald and Golden Eagle Protection Act; the Natural Gas Pipeline Safety Act; the Rivers and Harbors Act of 1899; the Federal Land Policy and Management Act; and the Hazardous Liquid Pipeline Safety Act. Additionally, for carbon dioxide pipelines, state agencies will play a critical role in any planning and permitting.
Based on the scope of legal obligations to develop CCUS projects, properly and rapidly deploying such projects will require optimization of the permitting process and of the siting from an impacts perspective (such as community, cultural, and environmental aspects). To these ends, the Guidance provides the following recommendations to relevant federal agencies:
- Use programmatic environmental reviews under NEPA and programmatic biological opinions under the ESA to efficiently address large geographic areas through one analysis and identify preferred project development areas.
- Involve tribes and communities early during the scoping phase of environmental review to identify project alternatives that will reduce environmental impacts, especially on overburdened and underserved communities.
- Adopt memoranda of understanding to establish efficient processes for collaboration on anticipated CCUS projects and related activities.
- Increase transparency related to CCUS activities in the U.S., including by providing publicly available lifecycle analyses and establishing standards or certification for relevant products.
- Update relevant regulations and collaborate with CEQ to, among other things, address the deployment of CCUS technologies.
- For the Departments of the Interior and of Energy, as well as the National Oceanic and Atmospheric Administration, implement a national program for monitoring deep geologic carbon sequestration.
- For the Permitting Council, establish a facilitating agency for each general CCUS project category and develop CCUS project recommended performance schedules.
Guidance on Responsible CCUS Project Development
To ensure responsible CCUS projects, the Guidance recommends that project proponents and agencies “should engage communities and Tribes in co-development of projects and approaches; protect communities from pollution; and incorporate environmental justice and equity considerations, especially in communities that are already exposed to multiple pollution sources.” To accomplish this, CEQ recommends:
- Evaluating the impacts of proposed CCUS actions on potential host communities early in the planning process.
- Providing information about the impacts, costs, and benefits of CCUS in advance of tribal consultation and stakeholder engagement.
- Consulting tribal nations on potential CCUS projects in a manner that strengthens nation-to-nation relationships.
- Avoiding the imposition of additional burdens on overburdened and underserved communities, including by evaluating direct, indirect, and cumulative effects, and identifying and implementing appropriate mitigation and avoidance measures.
- Ensuring transparent decisions and accountability to tribes and communities with respect to any applicable mitigation measures designed to reduce environmental
Guidance on Understanding Environmental Impacts
CEQ also recommends that agencies remain focused on fully understanding, assessing, and quantifying environmental impacts associated with the rapid deployment of CCUS projects. For example, agencies should “assess and quantify potential impacts on local criteria air pollutants and other emissions resulting from carbon capture retrofits at industrial facilities in response to concerns regarding potential cumulative emissions from single and/or multiple sources.” CEQ further recommends that agencies should assess carbon dioxide emissions from project infrastructure and that outer continental shelf sequestration projects should consider possible impacts on water column carbonate chemistry. Additionally, the Guidance charges several federal agencies to develop studies to better understand the impacts of geologic sequestration on living marine resources.
Although legally unremarkable, the Guidance provides industry and the public with valuable information. First, the Guidance confirms that achieving the Biden-Harris administration’s goal of net-zero emissions economy-wide by 2050 will require widely deployed CCUS technologies. Second, it shows the administration is committed to broadly supporting industries, including the power industry, in efforts to reduce greenhouse gas emissions and other pollution through CCUS technologies. Third, the Guidance conveys that federal-agency actions going forward will reflect this commitment, subject to the administration’s related priorities of ensuring environmental justice and improving tribal consultations. And fourth, the Guidance provides a high-level regulatory roadmap with respect to CCUS projects going forward. In short, anyone involved with or considering CCUS projects should keep this information top of mind.
—Jared Wigginton is an experienced environmental, natural resources, and energy attorney committed to advancing renewable energy and related infrastructure projects by assisting businesses with permitting, regulatory advocacy, litigation, and enforcement matters. To help fulfill this commitment, Wigginton founded Good Steward Legal, a principles-based business law office dedicated to protecting and advancing its clients’ interests by providing them with cost-effective, high-quality legal service.