Activists Slam Louisiana Carbon Permits, Explore Legal Options

Environmental groups are railing against the EPA’s decision to grant Louisiana authority over carbon capture projects, causing regulators to brace for an expected wave of lawsuits.

Starting Feb. 5, the Louisiana Department of Natural Resources will be responsible for reviewing 22 carbon capture and storage project proposals that are currently in the Environmental Protection Agency’s purview. That’s the largest queue of any state that the EPA oversees, according to permit data updated this month.

Louisiana regulators are expecting lawsuits as soon as they approve the first permit, said Patrick Courreges, a spokesperson for the state’s natural resources department.

“Environmental groups are going to be watching us like hawks,” and potential litigation would likely try to show faults in permit review processes and other procedural matters, he said.

But legal action may be coming sooner. A coalition of dozens of state and national environmental groups, which includes Earthjustice and the Center for Progressive Reform, are exploring legal paths forward, according to Logan Burke, executive director of the Louisiana-based nonprofit Alliance for Affordable Energy.

“We have very little faith” that what is turning into a “carbon sequestration gold rush” is safe and that agencies will do their jobs, Burke said.

Right now, the EPA has chief authority, or “primacy,” over so-called Class VI wells, which companies can build to pump carbon dioxide deep into the ground instead of releasing it into the atmosphere. But since 2018, three states—North Dakota, Wyoming, and now, Louisiana—have taken over permitting programs after lengthy EPA review processes. Others, such as Texas and Arizona, have applied for primacy and are under consideration.

States pursue carbon capture primacy to entice companies interested in the technology with quicker project review timelines than the EPA can offer. That mission has largely succeeded in Wyoming and North Dakota, which has permitted nearly as many wells in six years as the EPA has in 12 years.

Louisiana has vast potential for carbon storage. Its empty underground caverns, a product of years of fossil fuel extraction, could capture as much as 6 million tons of CO2 per year, according to estimates from ClearPath, a group that advocates for nuclear power and carbon capture.

But opponents of carbon capture say the technology increases reliance on fossil fuels and puts disadvantaged communities at risk for the possibility of pipeline fractures, which could emit large levels of CO2 into the air at once, among other environmental consequences.

“These same communities that have borne the burden of environmental impacts are being asked to do it again,” said Earthjustice senior attorney James Yskamp.

‘A Super-Petrostate’

In Louisiana, whose unregulated oil and gas history spans everything from a sinking coast to the formation of a “Cancer Alley” due to petrochemical pollution, environmental advocates have a deep distrust of state regulators and elected officials. That dynamic has only intensified with the election of the state’s first Republican governor in years.

“There’s no track record whatsoever of the state providing strong oversight or even adhering to federal regulations,” said Anne Rolfes, director of environmental nonprofit Louisiana Bucket Brigade.

Environmentalists expect a new wave of oil and gas companies, many of which see carbon capture and sequestration as a way to curb climate concerns while continuing to make profits, to reach Louisiana amid the primacy news and the governor regime change.

“If we were a petrostate before, we’re a super-petrostate now,” Rolfes said.

Whether the state’s geology could handle a wave of new activity is a major concern for climate advocates. Plus, environmentalists point out that all 22 proposed projects in the queue are for new facilities, not upgrades to existing ones, which could actually increase emissions.

“It’s all about new facilities and using carbon capture to expand” oil and gas interests, Rolfes said.

The Louisiana Department of Natural Resources, however, maintains that its program won’t be a rubber stamp for oil and gas companies.

To obtain primacy, states’ Class VI well programs must mirror or surpass EPA regulations in every category. Louisiana’s goes further in a few ways, including banning sequestration in salt caverns and reviewing each well in a project proposal individually instead of issuing area-wide permits, Courreges said.

“We know what works and what doesn’t in our state,” Courreges said. “That’s why our rules are tighter than the EPA’s.”

Legal Strategies

Environmental organizations looking for legal routes, however, are keeping an eye out for ways that the state’s program isn’t as stringent as the EPA’s. One could center around who’s liable for storage facilities once they’re full.

Louisiana has agreed to take over stewardship of Class VI wells and storage sites 50 years after they’re no longer active. EPA’s Class VI program doesn’t have that provision, instead requiring operators to maintain liability of their sites.

Transferring carbon capture and storage sites to the state doesn’t meet the EPA’s stringency requirements, Yskamp argues, since it saddles a public entity with risk.

“EPA cannot approve the program while this conflicting law is in place,” Yskamp wrote in July comments to the agency.

The EPA didn’t immediately respond to a request for comment.

Potential plaintiffs could also argue cases based on the Louisiana natural resources department’s ability to implement and carry out the program effectively, or that the program could harm resources like drinking water, Yskamp said.

“Turning over primary enforcement authority to LDNR would be a dangerous and rushed experiment on the geology and communities of Louisiana in the hands of an agency that has failed in its enforcement and regulatory duties on other well programs,” he wrote to the EPA.

When a final rule is promulgated, individuals have 45 days under the federal Safe Drinking Water Act to file a petition of review in circuit court, Yskamp said.

“I think a lot of the groups that were concerned about this are still going through the final rulemaking” and “deciding whether they want to bring a challenge,” he said.