The Nickel Report

Over the past six years, federal and State lawmakers have done much to promote carbon capture utilization and storage (CCUS) - capturing carbon dioxide from an industrial source or from the air, then transporting it either for use in making new products or for underground disposal.  CCUS is considered indispensable for meeting global CO2 emission reduction targets.  Moreover, captured CO2 has tremendous potential value.

The Chevron doctrine – the bedrock principle of administrative law under which courts afforded deference to administrative agency interpretations in the face of statutory ambiguity – is no more.  On June 28, 2024, the U.S. Supreme Court issued a long-anticipated decision that addresses the authority of regulatory agencies to dictate policy and the extent to which courts will exercise their own judgment as to the meaning of a statute and how that may bound agency decisions. 

On May 28, the Biden Administration released a joint policy statement and a set of principles for voluntary carbon markets.  The statement provides an additional signal of the Administration’s support for voluntary carbon markets as a means of encouraging decarbonization efforts, while the principles put the weight of the Administration behind specific concepts underpinning the credibility of voluntary carbon credits and voluntary credit markets.

For federal agencies seeking to complete rulemaking before the end of the Biden Administration, the clock is ticking, and a number of important deadlines are fast approaching. One of the most important deadlines could be the Congressional Review Act’s (CRA’s) so-called “look-back” provision.

The CRA mandates agencies provide Congress an opportunity to review and possibly overturn rules. To overturn a rule, both houses of Congress must pass a joint resolution of disapproval, and it must be signed by the President. If a CRA resolution is enacted, it invalidates the rule in question and bars the agency from issuing another rule in “substantially the same form” as the disapproved rule. 5 U.S.C. § 801(b)(2). If a rule has already taken effect by the time it is set aside via the CRA, it will no longer be in effect and “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f).

On January 5, 2024, EPA approved Louisiana’s application to administer the Class VI underground injection control program (UIC). 89 Fed. Reg. 703. Class VI wells are used to inject carbon dioxide into deep geological formations for long-term underground storage. This technology is a promising tool for reducing carbon dioxide emissions to the atmosphere.

EPA’s grant of “primacy” to Louisiana for the Class VI program will allow the state’s Department of Natural Resources to issue UIC permits for Class VI wells, and to ensure compliance with the program. Louisiana submitted its application for Class VI primacy on September 17, 2021. It becomes the third state with primacy over Class VI wells, joining North Dakota (granted primacy in 2018) and Wyoming (2020). Louisiana is the first state to receive primacy over Class VI wells during the Biden administration. Several other states—including Texas, West Virginia, and Arizona, according to the EPA’s website—currently are seeking primacy.

Many involved in carbon capture utilization and storage (CCUS) policy foresaw several years ago the situation we are in now:  lots of Class VI Underground Injection Control (UIC) permit applications to store CO₂, not enough speed at the US Environmental Protection Agency (EPA) to get them processed, and not enough speed by EPA to divvy up the work by delegating the permitting authority to the States. 

That’s why Congress included funding in the Bipartisan Infrastructure Law for Class VI UIC permitting:  $50 million for EPA to help States defray costs of taking over the Class VI permitting program and $25 million total for fiscal years 2022-26 for EPA itself to get the job done.

On June 5, 2023, the US Department of Energy (DOE) published its US National Clean Hydrogen Strategy and Roadmap. This report addresses the Infrastructure Investment and Jobs Act (IIJA) requirement that the DOE “develop a technologically and economically feasible national strategy and roadmap to facilitate widespread production, processing, delivery, storage, and use of clean hydrogen.” Notably, in developing this strategy, Congress instructed the DOE to focus on clean hydrogen production and use from a variety of sources—including natural gas, coal, renewable energy, nuclear energy, and biomass.

On April 27, 2023, the Environmental Protection Agency (EPA) published a Proposed Rule to grant Louisiana primacy to administer and enforce the Class VI Underground Injection Control (UIC) program within its borders. EPA approval of Louisiana’s primacy application would authorize the Louisiana Department of Natural Resources (LDNR) to issue UIC permits for Class VI geologic carbon sequestration facilities and undertake compliance enforcement for such facilities located within the state. EPA has determined that Louisiana’s application meets the necessary requirements for approval and is soliciting public comments on the proposal. One of the major sticking points in EPA’s approval of Louisiana’s program has been the approach to incorporating environmental justice (EJ) into the Class VI permit process. LDNR has agreed to implement a number of EJ-focused elements into the permitting process, including robust EJ analysis and public participation.

On March 29 the US House of Representatives adopted by voice vote an amendment offered by Reps. Dan Crenshaw (R-TX) and August Pfluger (R-TX) to speed up Environmental Protection Agency (EPA) review of state applications for primacy to run the Class VI Underground Injection Control (UIC) program. The amendment was included in H.R. 1, the Lower Energy Costs Act, the high-profile energy and permitting reform bill the House approved on March 30.

The UIC program is designed to prevent endangerment of underground sources of drinking water from subsurface injections. The Class VI program specifically regulates the geologic sequestration of carbon dioxide, which is considered to be essential for the world to meet international emission reduction targets. 

Last Friday, March 24, the White House Council on Environmental Quality (CEQ) announced the rosters for two task forces charged with providing input for the development of Carbon Capture, Utilization, and Sequestration (CCUS) programs. The task forces are a requirement of the Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, passed in 2020 as a part of the Consolidated Appropriations Act, 2021, and will focus on CCUS with regard to permitting on private and federal  lands, including the Outer Continental Shelf. Members of the task forces include state and ...

On February 23, 2023, the US Department of Energy (DOE) published two Funding Opportunity Announcements (FOA) titled Carbon Capture Large-Scale Pilot Projects and Carbon Capture Demonstration Projects Program.  

Both programs provide incentives for the power and industrial sectors to develop carbon capture technologies. Together they will award more than $2.5 billion in funding to eligible projects at new and existing industrial facilities. As carbon capture utilization and storage (CCUS) continues to develop and grow, this funding presents opportunity for a broad range of stakeholders that operate in various industrial sectors.

On December 13, 2022, the US Department of Energy (DOE) published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, BIL-Carbon Utilization Procurement Grants Under Bipartisan Infrastructure Law Section 40302.

The Carbon Utilization Procurement Grant program provides incentives for the use of products developed from the conversion of carbon oxides emitted from human activity. Carbon capture, storage, and reuse opportunities have traditionally been designed to address a narrow scope of issues and be available exclusively to targeted industries and subsectors. The broad eligibility outlined in this NOI suggests a vast applicability to all industry sectors and segments of the supply chain.

On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.

On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.

Hydrogen plays a critical role in the United States’ energy mix, providing energy security, economic value, and environmental benefits. DOE’s Office of Energy Efficiency and Renewable Energy (EERE) issued the NOI to achieve such goals by providing financial assistance awards in the form of cooperative agreements. These funds were appropriated by Congress in the Infrastructure Investment and Jobs Act (more commonly known as the Bipartisan Infrastructure Law (BIL)).

Below are some key points from two CCUS-related events in Texas last week: the annual CO₂-EOR Conference in Midland, which has been going on for almost 30 years; and a symposium our firm hosted with the University of Houston on CCUS risk management. We’ll start with the latter.

Carbon Capture and Sequestration Will Be Necessary to Meet State Climate Targets

On November 16, 2022, the California Air Resources Board (CARB) released its proposed final “2022 Scoping Plan for Achieving Carbon Neutrality” (Scoping Plan). The proposed final Scoping Plan—California’s fourth roadmap for mitigating climate change—lays out a path for California to achieve carbon neutrality and reduce anthropogenic emissions to 85 percent below 1990 levels by 2045.

On May 3, 2022, the Railroad Commission of Texas (Railroad Commission) voted to approve three actions that represent a major step forward in facilitating the deployment of carbon capture, use and sequestration activities (CCUS) in Texas. Specifically, the Railroad Commission approved:

• Publication of proposed amendments to its rules implementing the state program for geologic storage of anthropogenic CO₂ and incorporating federal requirements;
• Submittal to the US Environmental Protection Agency (EPA) of a pre-application to gain regulatory authority over Class VI underground injection control (UIC) wells that are used for injection of CO₂ into deep subsurface formations; and
• A request that the Governor formally ask EPA for Class VI UIC well program approval. [i]  

Risk management is one of the few key policy issues to facilitate carbon capture and storage (CCS) in Class VI storage facilities that has not been the beneficiary of substantial policy revision in the past few years. Stakeholders are interested in the development of policy to effectively manage the safety, performance, and liability risks associated with containment of captured and stored CO₂.

Using carbon dioxide to produce oil could be a key technology to transition to an energy landscape with lower greenhouse gas emissions.

Injecting CO2 into an oil formation to produce oil is known as enhanced oil recovery (EOR).  The injected CO2 not only increases pressure in the formation, which aids production, but under certain conditions, the CO2 will mix with oil trapped within the rock in the formation, causing it to become mobile and able to be produced.

On November 1, 2021, as the world commences the COP26 gathering in Glasgow, Scotland, for the next round of global climate negotiations, the White House, under the signatures of John Kerry, Special Presidential Envoy for Climate, and Gina McCarthy, National Climate Advisor, issued a strategy stating that achieving net-zero GHG emissions by 2050 is possible and outlining the broad steps for doing so.  The Long-term Strategy of the United States: Pathways to Net-Zero Greenhouse Gas Emissions by 2050 includes the following key elements: 

As the Biden Administration settles in and begins to appoint its designees to key executive and administrative agencies, a series of policy objectives are coming into focus.  Chief among them is expanded attention and regulation in the ESG space regarding environmental, social and governance issues at American businesses. In this post, we survey the expected direction of these initiatives at, for example, the SEC, Department of Labor, and EPA.

Recently certain policy advocates have suggested that the Federal Energy Regulatory Commission (FERC) should attempt to revitalize the Federal Power Act Section 216 “backstop siting” authority as a means of addressing climate change.  Their objective is to facilitate the construction of more long-haul transmission lines from areas with excess renewable generation, so zero-emitting generation can reach more markets.

While the election results are not yet final, this article will proceed from the assumption that former Vice President Biden will become President in January and that Republicans will win at least one of the two U.S. Senate seats in Georgia to be decided by runoff, and thus will have a majority in the U.S. Senate.

On September 6, Assistant Secretary of Energy for Electricity Bruce Walker issued an order under Section 202(c) of the Federal Power Act declaring an emergency shortage of electric generation and directing the California Independent System Operator (CAISO) to require the dispatch of electrical output from specified electric generating units, if the CAISO determines the generation is necessary to meet demand.  The order applies during afternoon and evening hours from September 6 through September 13, 2020.

The Treasury Department and IRS have issued long-awaited Proposed Regulations regarding the tax credit for carbon capture and sequestration under Section 45Q of the Code1 (the “section 45Q credit”).

Generally, the amount of the section 45Q credit and the party that is eligible to claim the credit depend on whether the taxpayer captures qualified carbon oxide using carbon capture equipment originally placed in service at a qualified facility before February 9, 2018 (“Old 45Q Facility”), or on or after February 9, 2018 (“New 45Q Facility”), and whether the taxpayer disposes of the qualified carbon oxide in geological storage (“sequestration”), uses it as a tertiary injectant in a qualified enhanced oil or natural gas recovery project (“EOR”), or utilizes the carbon oxide in certain specified ways (“utilization”). The effective date of the amendments to the Code extending and expanding the section 45Q credit is February 9, 2018 (the “Credit Effective Date”). The Credit Effective Date appears throughout the Proposed Regulations to distinguish between Old 45Q Facilities and New 45Q Facilities and establishing the effective date for certain provisions.

The largest market for CO₂ captured from industrial sources through carbon capture utilization and storage (CCUS) is enhanced oil recovery (EOR), using the CO₂ to produce oil.  Captured CO₂ can be used for cement, algae production, and other uses, but EOR has vast potential.  Moreover, it has a nearly 50-year track record in the US, where it was pioneered.  Carbon dioxide injected into oil formations becomes permanently stored as part of the process.

On Sunday, April 12, Virginia Governor Ralph Northam signed into law the Virginia Clean Economy Act and the Clean Energy and Community Flood Preparedness Act. These two new laws will require Virginia to transition to 100 percent carbon-free energy by 2050 and join the Regional Greenhouse Gas Initiative (RGGI), among other things.

On August 27, 2019, the Federal Energy Regulatory Commission (FERC) and North American Electric Reliability Corporation (NERC) issued a White Paper proposing to disclose the names of entities that violate Critical Infrastructure Protection (CIP) standards, while continuing to withhold other details of those violations. This significant change in policy reflects broader issues in FERC’s handling of security information.

In this installment of our Inside Look series, Hunton partners Paul Tiao and Fred Eames discuss the challenges to businesses operating in a constantly evolving cyber threat landscape and steps some companies have taken to protect from attacks. It's important for companies operating in this space to adjust to changes to international, federal and state regulations regarding critical infrastructure and information sharing, including seeking application for a US SAFETY Act certification.

The Department of Treasury and Internal Revenue Service have released Notice 2019-32 seeking comment on key issues to be interpreted in the Section 45Q carbon oxide sequestration tax credit. Congress significantly enhanced the Section 45Q tax credit in the Bipartisan Budget Act of 2018, increasing the credit from $10/ton for CO2 used as a tertiary injectant (i.e., to produce oil or gas) to $35/ton; and increasing the credit for CO2 geologically stored but not used as a tertiary injectant from $20/ton to $50/ton. See our previous blog post here for additional details on the applicable credit amounts for projects before and after enactment of the Bipartisan Budget Act and other credit amount details.

On Wednesday, February 7, Congressman Alexandria Ocasio-Cortez (D-NY) introduced a federal resolution to recognize a “duty” of the federal government to create a Green New Deal (GND). This blog discussed the GND in a post on the Select Committee on the Climate Crisis on January 31.

Addressing climate change may be a primary focus of the resolution, but “green” is perhaps a misnomer, as the resolution calls for action on issues well beyond climate or the environment generally.

Energy companies may not be thinking much yet about federal legislation to regulate the consumer data they hold, but they should be. Privacy is shaping up to be a key legislative topic this year.

Why would an energy company need to care about privacy legislation? Because lots of different energy companies have extensive consumer data. Oil companies’ service station loyalty programs, electric utilities’ customer data—these are among the many types of consumer data that might end up being regulated under legislation Congress is expected to consider. Any company with large amounts of consumer data should pay attention to the issue. In addition, HR data may also be covered by privacy legislation, affecting every US company whether or not they hold consumer data.

Weeks after a federal judge called the science behind the alleged carcinogenicity of glyphosate “shaky,” a California state court jury hammered Monsanto with a $289 million verdict, connecting a former groundskeeper’s non-Hodgkin’s lymphoma to his exposure to the Roundup^® chemical. The August 10, 2018 verdict in Johnson v. Monsanto Co., No. CGC16550128 (California Superior Court, County of San Francisco)—which included $250 million in punitive damages—was the first in the nearly 8,000 Roundup-related cases currently pending against Monsanto, many of which are consolidated in multidistrict litigation in California federal court. However, adding another layer of confusion surrounding the use of glyphosate, a federal court in California recently decided that the state could not require Proposition 65 cancer warnings on products containing the chemical. The intense publicity surrounding the verdict has left retailers whose products contain ingredients that might have been treated with glyphosate wondering whether their products may be targeted next.  

In an article published in Law360, two Hunton Andrews Kurth LLP Partners discuss the passage of the Bipartisan Budget Act of 2018 and its implications for Section 45Q of the Internal Revenue Code. Carbon capture and sequestration supporters expect this to significantly boost deployment of carbon capture and storage (CCS) across the US.

Readers can access the full article here.

There are 7.6 billion people on the planet today. By 2050, there are projected to be 9.7 billion—or put another way, in just thirty years we will add the equivalent population of seven United States. The world’s most credible energy forecasting entities predict a global increase over that time not only in demand for energy, but demand for fossil energy. Even with steady increases in energy efficiency and a massive increase in renewables, consumption of fossil fuels will grow. That means carbon dioxide emissions won’t be reduced significantly without some technology to do so.

As part of the Bipartisan Budget Act of 2018, Congress significantly increased and extended the Section 45Q tax credit for sequestration of carbon oxides. This has been a top priority of carbon capture and sequestration (CCS) supporters for several years.

CCS is considered to be essential to global efforts to reduce CO₂ emissions. The world’s most respected analysis organizations all estimate that fossil fuel use will increase in the coming decades, even with energy efficiency improvements and vast increases in renewable energy. 

Infrastructure takes a long time to permit in this country. Every president over the past 30-plus years has tried to streamline the federal permitting process for infrastructure.  In his first State of the Union, President Trump called for streamlining the federal permitting process so it would take “no more than two years, and perhaps, even one.”

The House Energy & Commerce Committee is considering revising the Public Utility Regulatory Policies Act (PURPA), a 1978 law enacted in the wake of the 1973 oil embargo to promote energy conservation and production by domestic alternative energy sources, including renewables. Why is Congress considering changing it, and what would the proposed revisions do?

Energy ministers from participating Carbon Sequestration Leadership Forum (CSLF) countries will meet to discuss carbon capture and sequestration (CCS) issues in Abu Dhabi December 3-7. Below are some suggestions for a US position heading into the meeting. Before listing them, perhaps a bit of background on the CSLF and CCS is in order.

The CSLF was founded in 2003 with a mission to promote development and deployment of CCS technologies. It describes itself as “a Ministerial-level international climate change initiative that is focused on the development of improved cost-effective technologies for . . . CCS. It also promotes awareness and champions legal, regulatory, financial, and institutional environments conducive to such technologies.” Participants currently include 25 countries plus the European Union. It is unique in bringing together energy ministers and various stakeholders to discuss issues in open dialogue.

On August 23, the Department of Energy (DOE) released a study entitled “Staff Report to the Secretary on Energy Markets and Reliability.” This is the so-called “DOE grid study” that Secretary of Energy Rick Perry ordered his chief of staff Brian McCormack to produce in an April 14 memorandum, noting that “Over the last few years...grid experts have expressed concerns about the erosion of critical baseload resources.”

These concerns have been simmering for several years. As the US Environmental Protection Agency was developing the rule that became the Mercury and Air Toxics Standard, the Federal Energy Regulatory Commission (FERC)—prompted by then-Senate Energy and Natural Resources Committee Ranking Republican Lisa Murkowski—held a multi-day meeting to evaluate potential electric reliability impacts from anticipated closings of coal-fired power plants prompted by the rule.

On August 10, the Federal Energy Regulatory Commission (FERC) officially regained its quorum when Robert Powelson was formally sworn in as a commissioner. Mr. Powelson joins  fellow Republican Neil Chatterjee and Democrat Cheryl LaFleur at the agency. It was also announced that Mr. Chatterjee would be FERC’s new chairman pending the expected Senate confirmation of Republican nominee Kevin McIntyre as chairman in the fall.

At full strength, FERC has five members, but three are the minimum legally required to conduct much agency business. FERC lost its quorum in early February when former Chairman Norman Bay resigned after Commissioner Cheryl LaFleur was elevated to chairman. In addition, former Commissioner Colette Honorable stepped down at the end of June, leaving LaFleur as the sole Commissioner. For the last six months, FERC staff has handled various routine matters under delegated authority, but FERC has been unable to act in contested proceedings.

President Trump released his budget request for fiscal year 2018 on March 16. The budget blueprint, or “skinny budget” as it is being called, holds fairly flat the federal spending for programs other than entitlements. It requests a significant increase in defense spending that is offset by cuts to nondefense discretionary spending.

The Environmental Protection Agency (EPA) faces drastic cuts, equaling nearly a third of its budget. This would bring the EPA’s total budget to levels not seen since 1990.

On January 11, 2017, the US Environmental Protection Agency (EPA) published a proposed rule pursuant to Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or Superfund), mandating extensive and costly financial assurance requirements applicable to the hardrock mining and mineral processing industry. On the same day, EPA also announced plans to commence rulemaking to consider similar requirements for additional classes of facilities in the petroleum and coal, chemical manufacturing, and electric power generation, transmission and distribution sectors. Both proposals derive from a series of lawsuits culminating in a “sue and settle” order of the DC Circuit Court of Appeals affirming a schedule agreed to between EPA and various environmental groups to issue financial assurance regulations.

This week President Donald Trump issued an executive order (EO) making good on vows to reduce regulations coming out of Washington. The Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs sets two objectives — first, to eliminate two old regulations for every new one promulgated and, second, to impose a cap on the economic costs of regulations each year.

On Friday, January 20, President Trump’s Chief of Staff Reince Priebus issued a memorandum to executive branch department and agency heads placing an immediate hold on federal regulations that are under development.

This regulatory “freeze” has become standard practice in recent Administrations. In 2009, President Obama issued a temporary halt to regulations being developed by the outgoing George W. Bush Administration. In 2001, President Bush issued a temporary stay on regulations under development by the outgoing Clinton Administration. New presidents want to ensure that federal regulations reflect their policies and priorities.

Politico reports today that the Sierra Club is set to launch a $5 million campaign to fight construction of the 221 natural gas-fired power plants planned to be constructed across the country. Sierra Club argues that the world cannot afford more carbon dioxide emissions from combustion of fossil fuels.