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2021 is already poised to offer substantial growth in the area of carbon capture and sequestration (“CCS”). On January 21, Elon Musk announced on Twitter that he will donate $100 million to the “best” carbon capture technology, chosen through a competition whose details and judging criteria are yet to be announced. Further, on February 1, the New York Times reported that ExxonMobil announced that it would invest $3 billion in carbon and other projects to lower emissions. As part of this effort, Exxon is creating a new entity, ExxonMobil Low Carbon Solutions.  In addition, recently passed federal regulations are expected to encourage more private investment in CCS projects.

The Consolidated Appropriations Act 2021 (“H.R. 133”), which was signed into law by former President Trump on December 27, 2020, contains notable bipartisan energy initiatives, ranging from new and extended tax incentives to government programs for research and development for CCS projects. One such initiative authorizes the establishment of a Carbon Capture Technology Program within the Department of Energy’s Office of Fossil Energy.  This program will manage the development of transformational technologies in an effort to reduce emissions in the fossil fuel industry as well as in manufacturing and industrial facilities. The program will use research and development, large-scale and small-scale pilot projects and demonstrations, and a front-end engineering and design program. As part of this pursuit, the Department of Energy will enter into cooperative agreements with industry and other stakeholders for the construction and operation of six demonstration projects for carbon capture at coal electric generating facilities, natural gas electric generating facilities, and industrial facilities.

H.R. 133 also extends the Internal Revenue Code Section 45Q (“Section 45Q”) tax credit program for CCS projects by two years, giving developers of carbon capture projects until the close of 2025 to commence construction on projects eligible for the credit.  Section 45Q provides a tax credit per metric ton of qualified carbon oxide captured and disposed of pursuant to detailed provisions in both Section 45Q and the accompanying regulations.  An upcoming Energy Law Blog post will cover these provisions as well as the most recent Section 45Q regulations issued on January 6, 2021.

These new regulations are likely just the beginning for the advancement of CCS this year as widespread support for CCS is expected from the new Biden Administration. While specific CCS policy measures have yet to be announced, President Biden signed an executive order on climate change. This executive order establishes, among other things, an Interagency Working Group on the Social Cost of Greenhouse Gases, which will publish interim social costs for carbon dioxide and recommend areas of decision-making, budgeting, and procurement where the social costs should be applied. CCS is also expected to play a role in meeting greenhouse gas reduction targets under the Paris Agreement, which President Biden recommitted the United States to through an executive order signed on his first day in office.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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By ratifying the 2015 Paris Agreement,[1] nations across the world made a commitment to reducing greenhouse gas emissions by at least 40% by the year 2030.  Carbon dioxide is one of the primary greenhouse gases found in the Earth’s atmosphere, accounting for 76% of global greenhouse gas emissions according to published reports.

Any effort to reduce greenhouse gas emissions will undoubtedly rely heavily on reducing the presence of carbon dioxide in the atmosphere. There are two primary ways to achieve a reduction of CO2: (1) decrease the output of carbon dioxide emissions; or (2) increase the amount of carbon dioxide that is removed from the atmosphere.

Continue Reading The Future of Carbon Capture and Sequestration

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The Infrastructure Investment and Jobs Act (IIJA), signed into law on November 15, 2021, amended Section 40307 of the Outer Continental Shelfs Act (OCSLA) to provide authority to the U.S. Department of Interior (DOI) to grant leases, easements, or rights of way that “provide for, support, or are directly related to the injection of a carbon dioxide stream into sub-seabed geologic formations for the purpose of long-term carbon sequestration” on the Outer Continental Shelf (OCS), further requiring that the DOI Secretary promulgate regulations to carry out such amendments “[n]ot later than 1 year after the date of this enactment.” The DOI determined that the Bureau of Safety and Environmental Enforcement (BSEE) will be responsible for offshore CCS activities related to installation, operations, emergency response plans, and decommissioning, and that the Bureau of Ocean Energy Management (BOEM) will be responsible for leasing and assessing the environmental impact of an offshore CCS program. The two bureaus stated their focus for fiscal year (FY) 2022 would be on the development of regulations to address the IIJA requirement; accordingly, both BOEM and BSEE have budgeted funds for FY 2023 to develop such a framework. However, the DOI’s proposed implementing regulations authorized by the IIJA have yet to be issued for public comment.

With the November 15, 2022 deadline now past, it is anticipated that regulations will be promulgated sometime in 2023. In the meantime, more questions than answers remain regarding the regulatory framework for offshore CCS. One issue is the method Interior will use to authorize offshore CCS – by lease, easement, or right-of-way (or some combination thereof). Easements and rights-of-way may provide more flexibility to the agency in structuring the authorizations. On the other hand, DOI’s existing leasing regulations may provide a more fleshed-out framework to guide the CCS authorization process. Another significant issue that will have to be addressed is the liability of operators and lessees or rights holders for potential leaks from offshore CCS projects. On April 28, 2022, during a House Committee on Natural Resources hearing conducted by the Subcommittee on Energy and Mineral Resources,  Dr. Timothy Meckel testified that the DOI regulations need to create long-term liability rules for potential deep-sea carbon storage leakage, considering the technology required to monitor offshore induced pressure is still being developed. Although operators would remain liable during the offshore lease or easement term, no regulatory answer has been established regarding the entity liable after the expiration of the lease or easement. DOI could choose to model such regulations on existing offshore CCS regulations of the European Union, which transfer liability to the government after operators confirm proper decommissioning of the well but do contain provisions allowing the EU member state to reopen the operator’s liability after lease expiration in the event an operator provided erroneous data, acted negligently, or if a subsequent hazard arises. Finally, the regulations will likely address other key issues including transportation pipelines, spacing between lease areas, environmental monitoring requirements, and use of legacy OCS infrastructure for CCS purposes.

Interior is currently conducting ongoing research on various technical and operational issues associated with offshore CCS. In May of 2022, BOEM established a rulemaking team for consideration of: financial, economic, and environmental considerations; pre-lease exploration/site characterization; leasing; plans for operations, facilities, and pipelines; well qualification and offset infrastructure; emergency response and mitigation; monitoring and reporting; decommissioning; and liability. Since then, BOEM has created three national CCS Environmental Studies Programs covering the regions it regulates (the Atlantic, Gulf of Mexico, Pacific, and Alaska), all slated for performance in 2023-2025. Notably, the FYs 2023 and 2024 Environmental Studies Programs seek to identify potential effects on the human and marine environments from potential migration and leaks, fugitive CO2 emission concerns, and cumulative impacts surrounding the largely uncharted territory of regulating long-term offshore CCS. Although in 2017 BOEM issued its “Best Management Practices for Offshore Transportation and Sub-Seabed Geologic Storage of Carbon Dioxide,” which mirrors EPA guidance for onshore wells and CCS, these three BOEM studies will make clear what the new offshore regulations need to address relating to potential storage malfunctions and when and how to decommission sites.

In addition to BOEM and BSEE, several other administrative agencies are conducting work related to offshore carbon capture. The Council on Environmental Quality (CEQ)  issued a “Report to Congress on Carbon Capture, Utilization, and Sequestration” in June of 2021. The CEQ report noted that royalty rate reduction credits for carbon capture could potentially create financial incentives for investment and recognized the need to address long-term liability after a storage site has been closed. On April 18, 2022, CEQ closed its public comment period for its CCS guidance, and on September 26, 2022, CEQ closed its acceptance of nominations for its brand-new “Federal Lands and Outer Continental Shelf Permitting Task Force” vacancies, which are anticipated to be filled by December 31, 2022. Additionally, on May 31, 2022, the DOE’s Office of Fossil Energy and Carbon Management, in conjunction with the EPA, issued a brand new “Compendium of Computational Tools to Support Geologic Carbon Storage Environmentally Protective UIC Class VI Permitting” that contains an offshore CO2 saline storage calculator with guidance on long-term storage resource distributions for OCS saline environments.

The Gulf of Mexico has an incredible amount of storage space for CCS, where BOEM has already identified 21 depleted reservoirs with Tier 1 reservoir shale in 9 different fields prime for geologic storage.. The Gulf Coast’s industrial sector, including refining, petrochemicals, gas liquification, and more – comprises a significant percentage of U.S. total CO2 emissions. Emissions from these operations can be transported to existing OCS infrastructure retrofitted for sequestration via injection into saline aquifers and depleted oil and gas reservoirs. In 2021, ExxonMobil announced its proposed $100 billion Houston Ship Channel CCS Innovation Zone which aims to create a multi-user CCS “hub” to capture the CO2 emissions from the chemical, manufacturing, and power plants located in Southeast Texas; ExxonMobil estimates the project will capture 100 million metric tons of CO2 emissions annually by 2040. This presents a significant opportunity for the Gulf of Mexico to be in a leading role in helping the U.S. achieve our carbon reduction goals. In addition, recent legislation, including the 2022 Investment Reduction Act, which revised the requirements and qualifications criteria for the Internal Revenue Code (IRC) Section 45Q carbon capture credit (part of the renewable energy tax policy created to meet U.S. COP26 pledges established at the 2021 UNCCC), is likely to push CCS projects forward. The multiple administrative players and the myriad issues that require considered analysis have no doubt delayed the issuance of DOI regulations in time to meet the November 2022 Congressional deadline, but CCS is a significant focus within DOI and other agencies for 2023. As a result, offshore carbon capture continues to gain momentum as DOI works through the process of developing a regulatory framework pursuant to the IIJA. Stakeholders should prepare for what will likely be a robust public engagement period as DOI works to propose and potentially finalize the framework sometime in 2023, while at the same time working through the workforce and infrastructure issues necessary to bring offshore CCS projects online. 

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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Last week, the Livingston Parish Council introduced a proposed ordinance that would place a moratorium on “the construction of disposal wells and injection wells in the Parish of Livingston.”[1] Although not limited to Class VI injection wells—which are those wells utilized for the injection and permanent sequestration of carbon dioxide—the proposed ordinance is clearly aimed at prohibiting carbon capture and sequestration operations within the parish. The proposed ordinance states that the purpose of the moratorium is to allow for further evaluation of the construction, monitoring, and financial responsibility requirements of Class VI wells. The construction and monitoring of Class VI injection wells and the financial responsibility requirements for Class VI well operators are currently regulated by the EPA under the Underground Injection Control program of the Safe Drinking Water Act.[2] However, the State of Louisiana is currently seeking primary enforcement authority—or “primacy”—over the Class VI well permitting program, at which point the Louisiana Department of Natural Resources, Office of Conservation would assume responsibility for permitting Class VI wells and ensuring such wells meet the construction and monitoring requirements set out in the regulations enacted in Louisiana Statewide Order 29-N-6.[3]

Livingston Parish’s proposed ordinance looks eerily similar to St. Tammany’s attempt to ban hydraulic fracturing eight years ago, which was ultimately struck down by Louisiana courts, finding that the St. Tammany zoning ordinance prohibiting hydraulic fracturing was preempted by state law.[4] Several local municipalities in other states have tried similar tactics to ban fracking but have met the same fate.[5] The Livingston Parish proposed ordinance is likely to face legal challenges if passed. The Livingston Parish proposed ordinance is scheduled for a public hearing at an upcoming parish council meeting on September 8, 2022, at 6:00 p.m.

[1] The proposed ordinance can be viewed here: L.P. Ordinance No. 22-

[2] The EPA regulations relating to Class VI wells can be found at 40 CFR §146.81 et seq.

[3] The Louisiana regulations relating to Class VI wells, which will go into effect once the state achieves primacy, can be found at 43 LAC §3601 et seq.

[4] See St. Tammany Parish Government v. Welsh, 2015-1152 (La. App. 1 Cir. 3/9/16); 199 So.3d 3. Liskow & Lewis successfully defended Helis Oil & Gas Company, LLC and was able to obtain a ruling striking down the St. Tammany zoning ordinance.

[5] See Fracking Scores with Two Colorado Supreme Court Opinions.

To learn more about carbon capture and sequestration and the Louisiana regulatory framework surrounding it, see A Primer on CCUS Regulation in Louisiana

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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In response to various pressures on the energy industry to reduce the environmental impact associated with excess carbon dioxide emissions, many energy companies are investigating carbon capture and sequestration projects as a means of reducing their carbon emissions. In addition to reducing carbon emissions, carbon capture and sequestration projects often qualify for valuable income tax credits.

One such credit is a California state income tax credit under California’s Low Carbon Fuel Standard program, overseen by the California Air Resource Board. This program allows for carbon capture and sequestration project operators that operate outside of California to receive state income tax credits if they are engaged in direct air capture or sales of low carbon transportation fuel within the state of California. To qualify for the credits, the California Air Resource Board requires that the project operator demonstrate that there is a binding agreement in place to prohibit drilling through the storage reservoir. However, the Louisiana Geologic Sequestration of Carbon Dioxide Act (the “Act”) does not prohibit mineral interest owners from drilling through approved storage reservoirs in search for minerals, thus project operators must successfully acquire binding contractual agreements from all affected mineral owners to qualify for these valuable credits.

A recent amendment to the Act addresses scenarios where these contractual agreements cannot be acquired from all affected mineral owners, at least with respect to projects located in Caldwell Parish. As currently written, the Act allows the project operator to expropriate the rights “necessary or useful” in constructing and operating the storage facility.[1] However, the Act clarifies that “[t]he exercise of the eminent domain granted in this Chapter shall not prevent persons having the right to do so from drilling through the storage facility in such manner as shall comply with the rules of the commissioner . . . .”[2] The amendment expands the project operator’s expropriation rights to allow for the exercise of eminent domain to “prohibit persons having the right to do so from drilling through the storage facility located in Caldwell Parish” if the following two requirements are satisfied: (1) five years have passed from actual drilling or operating an oil or gas well within the boundaries of the storage facility to depths below the base of the underground reservoir and (2) all formerly productive reservoirs below the underground reservoir are no longer capable of producing in paying quantities.[3] This new exception is not absolute or indefinite – if a person is prohibited from drilling through the reservoir as a result of this new exception, the prohibition will terminate if the Commissioner finds that the storage facility operator abandoned reasonable efforts to use the storage facility prior to any use of the underground storage reservoir component.[4]

The amendment (Act 163 of 2022) was signed by Governor Edwards on May 26, 2022 and will become effective on August 1st of this year. It is possible that the amendment will be expanded to cover additional parishes in the future as carbon capture and sequestration projects continue to expand. Liskow & Lewis attorneys will continue to monitor these and other developments in the carbon capture and sequestration space.

[1] La. R.S. 30:1108(A)(1).

[2] La. R.S. 30:1108(B).

[3] Act 163 of 2022.

[4] Id.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.

The Infrastructure Investments and Jobs Act (the “Act”), which was passed into law on November 15, 2021, included key amendments to the Outer Continental Shelf Lands Act (“OCSLA”) that pave the way for carbon sequestration in offshore federal waters.

Prior to the Act’s passage, OCSLA (as amended by the Energy Policy Act of 2005) authorized the United States Department of Interior to issue leases in federal waters for certain types of renewable energy projects. However, these provisions did not directly address leasing for carbon sequestration. The Act amended OCSLA to expressly authorize Interior to issue leases, easements, and rights-of-way for activities that “provide for, support, or are directly related to the injection of a carbon dioxide stream into sub-seabed geologic formations for the purpose of long-term carbon sequestration.” The Act defines “carbon sequestration” as “the act of storing carbon dioxide that has been removed from the atmosphere or captured through physical, chemical, or biological processes that can prevent the carbon dioxide from reaching the atmosphere.”

These amendments come months after the Council on Environmental Quality issued a Report to Congress that addressed steps to advance the orderly development of carbon capture. The Report noted the need to clarify the process for offshore storage leasing and project implementation.

The Act requires that Interior promulgate regulations to carry out the amendments within one year of passage of the Act. Interior will likely engage with industry as it attempts to issue regulations that address the various technical and environmental issues associated with leasing and permitting carbon sequestration projects. Companies interested in such projects should closely monitor this rulemaking process.

If you have any questions regarding the amendments, please contact Steve Wiegand or Jana Grauberger.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.

On July 1, 2021, the Internal Revenue Service published Revenue Ruling 2021-13, which provides guidance on three important issues related to the income tax credit for carbon oxide sequestration found in section 45Q of the Internal Revenue Code.  Recall that section 45Q provides for a credit against a taxpayer’s income tax liability based on the amount of carbon oxide (a) captured using carbon capture equipment, (b) placed in service at a qualified facility and (c) disposed of, injected, or utilized in a specified manner.  For more information on carbon capture and section 45Q tax credits, see here, here and here. Continue Reading New IRS Revenue Ruling Provides Opportunities for Financing Carbon Capture Equipment

Governor Edwards’ Climate Initiatives Task Force published the Louisiana Climate Initiatives Interim Report earlier this month, which outlines the process by which the Task Force plans to develop climate actions to reduce greenhouse gas emissions in Louisiana.

In February 2020, Governor Edwards committed to forming a Climate Initiatives Task Force for the purpose of developing recommendations to address greenhouse gas emissions. Executive Order JBE 2020-18, issued on August 19, 2020, formally established the Task Force.

The Executive Order set forth greenhouse gas emission reduction goals, including that Louisiana should reduce net greenhouse gas emissions by 26-28% of 2005 levels by 2025; by 40-50% of 2005 levels by 2030; and to net zero by 2050. These goals are in line with the Paris Climate Accord, as well as commitments made by other states and businesses. The Task Force is charged with making recommendations to achieve these goals.

The Climate Initiatives Task Force is made up of 23 members and supported by six sector committees and four advisory groups, all together consisting of over 135 experts from the government, colleges, private sector, and civil society. The Task Force submitted the Louisiana Climate Initiatives Interim Report, and it will decide what strategies are included in the Final Climate Report due in February 2022.

The committees and advisory groups held their first meetings in December, where they discussed their charges and objectives for the Task Force to consider. The Interim Report lists each groups’ goals, a selection of which are set forth below:

Finance Advisory Group:

  • Consider workforce implications and opportunities associated with proposed policy directions (including K-12 and higher education considering the long-term nature of this issue);

Science Advisory Group:

  • Advise Task Force and Governor’s Office of Coastal Affairs on core components of net GHG emission reduction strategies for consistency and to ensure that strategies are cumulative across sectors, including all major sources and sinks. Address advantages and hazards associated with emission reduction strategies (and risks and costs of not doing anything), emission reduction capabilities, and co-benefits;

Agriculture, Forestry, Conservation, and Waste Committee:

  • Examine opportunities to reduce GHG emissions and increase carbon storage capacity through agriculture and forestry practices, conservation measures that promote natural carbon sinks, blue carbon opportunities, and waste management.

Manufacturing and Industry Committee:

  • Consider opportunities to deploy cleaner sources of energy to fuel operations, enhance efficiencies, reduce unintentional releases, capture and sequester or reuse emissions, offset emissions, and other measures that reduce net emissions from combustion and non-combustion manufacturing and industrial activities in Louisiana.

Mining, Oil, and Gas Committee:

  • Examine opportunities to reduce greenhouse gas emissions throughout the mining, extraction, production, and transportation of oil and gas. This committee will consider carbon capture and sequestration, opportunities to enhance efficiencies and eliminate fugitive emissions, and other measures related to active and inactive elements of this sector.

The Louisiana Climate Initiatives Interim Report does not offer solutions or recommendations to address climate change in the state, however it does mark an important first step by outlining the goals of the different committees and groups and setting forth the process by which the Task Force will develop the Final Climate Report.

For more information see the Climate Initiatives Interim Report: https://gov.louisiana.gov/assets/docs/CCI-Task-force/CITF_InterimReportFINAL_02012021.pdf

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.
Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.

Several major oil and gas producers around the world are working with the Rocky Mountain Institute to develop a digital platform to assist in tracking and reducing emissions. Shell, ExxonMobil and Chevron are among the industry leaders piloting this new digital platform, which will enable emissions data to be obtained from a number of different sources, as well as industry reports. The digital platform being utilized is called the Climate Action Engine (CAE). Continue Reading Drilling for our Future: Technological Advances Leading the Industry

Earlier this month, Gulf Coast Sequestration (“GCS”), a limited liability company based in Lake Charles, announced its plans to build and operate a carbon capture and sequestration (“CCS”) project that will create a repository 10,000 feet underground for the permanent storage of more than 80 million tons of carbon. Once completed, the GCS facility is expected to be the largest CCS project in the United States and one of the largest in the world, according to its press release. Continue Reading Advancement of CCS in Louisiana