Sequestering Carbon Dioxide Undersea in the Atlantic: Legal Problems and Solutions

Author(s): Webb, Romany; Gerrard, Michael B. | Abstract: Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date, reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion or injected into underground geological formations (e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs) where it will hopefully remain permanently sequestered. This injection process is referred to as “carbon capture and storage” (CCS).Significant research has been undertaken to identify possible carbon dioxide injection sites in the continental United States. There is also growing interest in the possibility of injecting carbon dioxide offshore into geological formations underlying the seabed. However, little is currently known about the legal regime for sub-seabed injection. This article outlines the key legal requirements for injecting carbon dioxide into the seabed off the northeast coast of the U.S.The legal requirements for offshore carbon dioxide injection differ depending on the location of the injection operation. Injection operations undertaken in the Northeastern U.S., within three nautical miles of the coast (i.e., in “state waters”), are regulated under the Environmental Protection Agency’s (EPA) Underground Injection Control Program. That Program does not, however, apply to operations in “federal waters,” 3 to 200 nautical miles from shore, or on the “high seas” beyond those waters.There is currently no regulatory regime specific to carbon dioxide injection in federal waters or on the high seas. However, injection operations in those areas may be regulated under general programs, such as the ocean dumping regime established in the Marine Protection, Research, and Sanctuaries Act (MPRSA). The MPRSA was enacted to fulfill the U.S.’s obligations under the London Convention, which aims to prevent pollution of the seas by waste and/or other materials. Consistent with the terms of the Convention, the MPRSA regulates the disposal of material at sea. The EPA has suggested that the MPRSA may apply to the injection of carbon dioxide into the seabed.Assuming it applies to seabed injection, the MPRSA may operate as a barrier to offshore CCS. Under the MPRSA, any person transporting material from the U.S. for the purpose of dumping it at sea, whether in state waters, federal waters, or on the high seas, must obtain a permit from the EPA. Notably, the EPA cannot grant a permit when the material consists of industrial waste, which is defined as “solid, semi-solid, or liquid waste generated by a manufacturing or processing plant.” The dumping of such waste is therefore effectively prohibited by the MPRSA.Depending on whether carbon dioxide is considered an industrial waste, the MPRSA may operate either to ban its offshore injection or allow its injection with a permit from the EPA. Various other permits and authorizations may also be required depending on where and how injection occurs. The key requirements are outlined in this article.