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EPA Grants Louisiana Primacy Over Carbon Capture and Storage Permitting

on Tuesday, 16 January 2024 in Dirt Alert: David C. Levy, Editor

State primacy should help local projects obtain faster approval.  Other states may follow Louisiana’s lead in applying for primacy.

Louisiana recently became the third state with primacy to issue Class VI permits for carbon capture and storage (“CCS”) projects within the state.  North Dakota and Wyoming received in 2018 and 2020, respectively.  On December 28, 2023, the U.S. Environmental Protection Agency (“EPA”) issued a final rule extending primacy to Louisiana.[1]

Federal law requires a Class VI permit before any CCS operator may inject carbon underground.[2]  EPA typically issues those permits.  But CCS developers often face costly delays waiting for EPA approval.  EPA regularly takes two to three years before approving Class VI applications.[3]

Thus, EPA established the primacy process to delegate local authority over Class VI permitting to states, territories and tribes.  States may apply to EPA for primacy.  Primacy applications consist of (1) pre-application consultations between the state and EPA, (2) completeness and substantive reviews by EPA and (3) rulemaking and codification, setting the rule’s effective date. 

Within these steps, applicants must submit letters from their Governor and Attorney General.  In short, these officials must demonstrate their state’s Class VI program meets or exceeds federal requirements and adequately protects those underground sources of drinking water.  Once accepted and published by EPA, a state’s Class VI permitting process is enforceable as federal law.

Permitting primacy should help CCS projects in Louisiana to obtain faster approval.  Since North Dakota and Wyoming achieved primary, CCS projects there have obtained Class VI permits at a much quicker pace than in non-primacy states.  Now that Louisiana has achieved primacy, all pending Class VI applications there will transfer from EPA to the Louisiana Department of Natural Resources for approval.

Arizona, Texas and West Virginia also have primacy applications underway.  Colorado and Pennsylvania have also indicated they will soon apply for primacy.  Buoyed by Louisiana’s example, other states may follow.

Attorneys at Baird Holm LLP specialize in various subject matter areas including administrative, environmental, government relations and land use law.  Please contact us if you have any questions about this or a related matter. 

[1] 89 F.R. 703.

[2] See this article analyzing the CCS permitting process at both the state and federal levels.

[3] See this article summarizing the EPA’s timeline to approve Class VI permits in a non-primacy states.

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