Legal Issues Related to Carbon Sequestration Continued

1
Legal Issues Related to Carbon Sequestration
(Continued)

• Michael P. Healy
• College of Law
• University of Kentucky

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PUBLIC NUISANCE CLAIM

• California v. General Motors Corp., __ F. Supp.
  2d __, 2007 WL 2726871 (N.D. Cal. 2007).
• Connecticut v. American Electric Power Co., 406
  F.Supp.2d 265 (S.D.N.Y. 2005).

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NEGLIGENCE CLAIM

• In a toxic tort type case, a plaintiff must show
  substance, source and exposure causation. P must
  show that the substance for which D is
  responsible can cause P's injury or disease that
  D is the source of the substance and that P was
  exposed in a way that caused the disease or
  injury.

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NEGLIGENCE CLAIM(Continued)

• Possible analogy to toxic tort injuries
• Risk of Cancer
• Fear of Cancer
• Medical Monitoring

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STRICT LIABILITY CLAIM

• Restatement (Second) 520 Factors
• 1 2. The risk of harm is great. AND The harm
  that would ensue if the risk materialized is
  great.
• 3. Risks cannot be eliminated by the exercise of
  due care.
• 4. The activity is not a matter of common usage.
  
• 5. The activity is inappropriate to the place
  where it takes place (i.e., risk would be reduced
  by shifting location).
• 6. The value to the community of the defendant's
  activity.

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STATUTORY LIABILITY

• Resource Conservation and Recovery Act (RCRA)
• Comprehensive Environmental Response,
  Compensation, and Liability Act (CERCLA or
  Superfund)
• Clean Air Act (CAA)
• Safe Drinking Water Act (SDWA)

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Resource Conservation and Recovery Act (RCRA)

• Any person may bring (42 U.S.C. 6972(a)(1)(B)) or
  the EPA may bring (42 U.S.C. 6973(a)) a court
  action against any person engaged in the disposal
  of a solid waste if the activity is causing an
  imminent and substantial endangerment.
• RCRA defines solid waste to includee solid,
  liquid, semisold, or contained gaseous material
  resulting from industrial, commercial, mining,
  and agricultural operations . . . .
• Solid waste includes any other discarded
  material and is accordingly distinguished from a
  product.

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Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA or
Superfund)

• Section 104 identifies a variety of parties that
  are authorized to pursue response actions when
  there has been a release or a significant threat
  of a release of hazardous substances into the
  environment.
• Section 107 imposes strict, joint and several
  liability on parties, including generators
  responsible for the release of hazardous
  substances into the environment.

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Clean Air Act (CAA)

• 42 U.S.C. 7603 authorizes EPA to bring an action
  in federal district court to seek abatement of
  air pollution that is causing an imminent and
  substantial endangerment. EPA may also issue an
  administrative abatement order when the subject
  of the order is responsible for emissions that
  are causing the imminent and substantial
  endangerment.
• In Massachusetts v. Environmental Protection
  Agency, 127 S. Ct 1438 (2007), the Supreme Court
  held that Congress had not precluded the
  regulation of carbon dioxide under the mobile
  sources provision of the CAA.

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Safe Drinking Water Act (SDWA)

• The SDWA includes a provision that authorizes the
  EPA to issue an abatement order or to bring an
  abatement action in federal district court if a
  defendants activities are causing an imminent
  and substantial endangerment to health because of
  the entry or threatened entry of materials into
  an underground source of drinking water. See 42
  U.S.C. 300i(a).

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REGULATORY REQUIREMENTS

• Safe Drinking Water Act (SDWA)
• Resource Conservation and Recovery Act (RCRA)
• Cap and Trade Enforcement

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Safe Drinking Water Act (SDWA)

• EPA administers an Underground Injection Control
  (UIC) Program that requires that an operator of
  an underground carbon dioxide storage facility
  receive a permit authorizing the facility. See
  40 C.F.R. Parts 144-48.
• Carbon sequestration may now be permitted as a
  Class V experimental technology well. At the end
  of July 2008, EPA proposed a new class of
  injection wells -- Class VI that would apply to
  geologic sequestration of carbon dioxide.
  Comments on the proposed regulations are due on
  or before November 24, 2008.

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Safe Drinking Water Act (SDWA)

• There are two important restrictions on the scope
  of the UIC program. First, the program applies
  only to injection wells, but does not apply to
  production wells, that is, wells utilizing the
  injected fluids to enhance mineral recovery. See
  42 U.S.C. 300h(d)(1).
• Also, the UIC permitting requirements do not
  apply if the materials being injected under
  ground are hazardous. They would then be
  regulated under RCRA, provided that they are
  solid wastes.

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Resource Conservation and Recovery Act (RCRA)

• Regulatory requirements are triggered by disposal
  of hazardous waste. A hazardous waste is a solid
  waste that either (a) is listed by EPA (listed
  wastes are typically the most hazardous wastes)
  or (b) possesses one or more of four
  characteristics ignitability, corrosivity,
  reactivity, or toxicity.
• The generator of the waste is responsible for
  determining whether the waste is hazardous.

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Resource Conservation and Recovery Act (RCRA)

• The EPAs discussion of carbon dioxide
  sequestration indicates that the material is not
  hazardous in its pure form. See 73 Fed. Reg.
  43,503. EPA indicates, however, that carbon
  dioxide intended for sequestration may be
  hazardous as a consequence of hazardous
  contaminants. See id. To the extent that such
  contaminants can be removed as the carbon dioxide
  for sequestration is produced, RCRA regulation
  will be avoided.

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Cap and Trade Enforcement

• To the extent sequestration is used to meet cap
  and trade limits, sequestration will need to be
  guaranteed for a lengthy time period. For
  example, Vermonts regulation promulgated to
  implement the Regional Greenhouse Gas Initiative
  provides that credits are available only when the
  greenhouse gas has been permanently and
  irrevocably retired.