Geologic Sequestration of Carbon Dioxide: The State of Responsible Primacy

February 13, 2024

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by Jake Ferrell and Dr. Simone H. Stewart (National Wildlife Federation) When it comes to emerging technologies and the implications of deploying climate solutions, which entity should lead the infrastructure charge: the state or the federal government? This question is one now frequently asked in the carbon management space, and has sparked debates across the country, specifically surrounding the issue of “primacy,” or state authority to regulate carbon storage wells.

This issue brief from the National Wildlife Federation explains the issue of state primacy over carbon storage wells, and outlines what it would take to ensure a responsible approach.
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The most common setting for permanently sequestering CO2 after it has been captured is underground, in very deep, impermeable rock formations. To regulate and monitor the sequestered CO2, the US Environmental Protection Agency (EPA) is charged with administering the Underground Injection Control (UIC) program, whereby it sets regulatory standards and processes applications for underground wells with the goal of preventing contamination of drinking water under the Safe Drinking Water Act.2 Historically, five types, or classes, of underground wells have existed, including industrial and municipal waste (class I); oil and gas (class II); solution mining (class III); shallow hazardous and radioactive waste (class IV); and nonhazardous fluids (class V). In 2010, EPA established a sixth class of wells for geological sequestration of CO2, and continues to hold responsibility for regulating these wells across the majority of states.
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The Role of Primacy
The federal EPA does not regulate wells across all states, however. Permitting under the UIC program is time and resource intensive, involving careful site studies and extensive modeling. The process duration from initial application to full approval takes around two years, and sometimes longer, which can be a significant hurdle to states and projects looking to quickly take advantage of federal incentives and meet the pace of scale-up.4 To ease the pressure on EPA amidst a flurry of applications, 5 EPA Administrator Michael Regan has encouraged states to apply for “primary enforcement responsibility” or “primacy” over the administration of UIC Class VI wells for CO2 sequestration, so long as they can administer the program responsibly.6,7
Applicants seeking primacy, including Tribes and territories, must meet the EPA’s minimum requirements for the specific UIC program, demonstrating “their standards are effective in preventing endangerment of underground sources of drinking water” by requiring that the applicant has: “jurisdiction over underground injection; regulations that meet the federal requirements for 1422 programs (which includes Class VI wells); and the necessary administrative, civil and criminal enforcement penalty remedies.”

In potentially granting primacy, for either all or part of the well program, EPA considers the following: 8 letters from a state’s governor and attorney general, a description of what the program will look like at the state level, a memorandum of agreement between the state and EPA, copies of the state’s UIC statutes and regulations, and documents demonstrating the state’s public participation process.

At the time of publication, three states – North Dakota, Wyoming, and Louisiana – have successfully applied for and been granted the power, with Louisiana becoming the most recently awarded on December 28, 2023.9 Three states are currently in various stages of requesting primacy: Texas, Arizona, and West Virginia. For both North Dakota and Wyoming, successfully applying for primacy was a lengthy process. North Dakota applied in 2013 and waited until 2018 for its approval, while Wyoming’s official application in 2019 was preceded by years of dialogue with EPA Region 8, which streamlined final approval in 2020.10

In October 2021, North Dakota became the first state to issue a Class VI storage permit for CO2 captured from an ethanol industrial facility, and followed it up with a second permit for captured CO2 from a coal-fired power plant in January 2022. The power plant’s Class VI well state application time totaled only eight months, substantially less than the federal EPA’s expected application period of two years.11 Wyoming approved its first three Class VI well permits in December 2023, three years after being granted state primacy.12
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In the case of Louisiana, some environmental justice groups, led by the Deep South Center for Environmental Justice, penned a letter to the EPA urging them to deny the state’s bid for primacy.15 The letter argues, in some detail, that 1) Louisiana does not have sufficient expertise or staff to carry out the program on its own; 2) some proposed state environmental regulations are less stringent than federal requirements, including leaving the public open for cleanup liability; 3) the state has “a bad track record” of insufficient regulatory enforcement on previous oil and gas wells; and 4) allowing state primacy in these circumstances would undermine federal commitments to environmental justice.
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Opposition to primacy bids in West Virginia and Texas echo similar points: they charge that state agencies lack sufficient capacity to administer the permitting program and have poor track records of upholding environmental protections in the face of industry violations.18
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A Pathway for Responsible Primacy In November 2023, the Biden Administration announced a grant program aimed at facilitating more successful state primacy applications. The UIC Class VI grant program, with $48 million in available funding, has been allocated equally across 25 interested states and Tribes to assist in building their capacity for permitting Class VI wells.19

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Endnotes

1 IPCC AR6 Working Group III: Mitigation of Climate Change, Summary For Policymakers (2022): https://www.ipcc.ch/report/ar6/wg3/downloads/report/IPCC_AR6_WGIII_SPM.pdf.

2 United States Environmental Protection Agency (EPA), Protecting Underground Sources of Drinking Water from Underground Injection (UIC). Accessed 14 December 2023: https://www.epa.gov/uic.

3 United States Environmental Protection Agency (EPA), Class VI Permit Application Outline. Accessed 14 December 2023: https://www.epa.gov/system/files/documents/2022-07/class_vi_permit_application_outline.pdf.

4 Carlos Anchondo, “DOE official: EPA backlog on CO2 wells puts climate goals at risk,” E&E News, 20 September 2023: https://subscriber.politicopro.com/article/eenews/2023/09/20/doe-official-permitting-backlog-for-co2-wells-risks-climategoals-00116805.

5 Jean Chemnick, “As EPA drowns in CCS applications, oil states want to take control,” E&E News, 8 September 2023: https://subscriber.politicopro.com/article/eenews/2023/09/08/as-epa-drowns-in-ccs-applications-oil-states-want-to-takecontrol-00108147.

6 Michael S. Reagan, “Underground Injection Control Class VI Wells Memorandum.” Accessed 14 December 2023: https://www.epa.gov/system/files/documents/2022-12/AD.Regan_.GOVS_.Sig_.Class%20VI.12-9-22.pdf.

7 United States Environmental Protection Agency (EPA), Primary Enforcement Authority for the Underground Injection Control Program. Accessed 14 December 2023: https://www.epa.gov/uic/primary-enforcement-authority-underground-injection-controlprogram-0.

8 United States Environmental Protection Agency (EPA), Primary Enforcement Authority for the Underground Injection Control Program. Accessed 14 December 2023: https://www.epa.gov/uic/primary-enforcement-authority-underground-injection-controlprogram-0#what_core.

9 EPA Grants Louisiana Office of Conservation State Authority Over CO2 Injection and Sequestration,” State of Louisiana Department of Energy and Natural Resources, 28 December 2023: https://www.dnr.louisiana.gov/index.cfm/newsroom/ detail/1233

10 Philip K. Lau, Dale D. Smith & Nadav C. Klugman, “Carbon Capture, Utilization, and Storage: Class VI Wells and US State Primacy” Mayer Brown, 9 June 2022: https://www.mayerbrown.com/en/perspectives-events/publications/2022/06/carbon-captureutilization-and-storage-class-vi-wells-and-us-state-primacy.

11 “World’s Largest Carbon Capture Facility - Project Tundra - Receives NDIC Approvals,” North Dakota Industrial Commission, 21 January 2022: https://www.ndic.nd.gov/news/worlds-largest-carbon-capture-facility-project-tundra-receives-ndic-approvals.

12 Kimberly Mazza, “Wyoming grants its first three Class VI permits,” Wyoming Department of Environmental Quality, 14 December 2023: https://deq.wyoming.gov/2023/12/wyoming-grants-its-first-three-class-vi-permits/.

13 Pete Obermuller, “OPINION: Petroleum Association of Wyoming Applauds Wyoming Primacy over Class VI Injection Wells,” Sweetwater NOW, 4 September 2020: https://www.sweetwaternow.com/opinion-petroleum-association-of-wyoming-applaudswyoming-primacy-over-class-vi-injection-wells/; “North Dakota becomes first state for Class VI Primacy,” Lignite Energy Council, 10 April 2018: https://lignite.com/news/north-dakota-becomes-first-state-for-class-vi-primacy/.

14 Jean Chemnick, “As EPA drowns in CCS applications, oil states want to take control,” E&E News, 8 September 2023: https://subscriber.politicopro.com/article/eenews/2023/09/08/as-epa-drowns-in-ccs-applications-oil-states-want-to-takecontrol-00108147.

15 “Comment in opposition to EPA’s proposed final rule approving Louisiana’s application to implement the UIC program for Class VI injection wells.” Earthjustice, 3 July 2023: https://earthjustice.org/wp-content/uploads/2023/07/comments-on-epas-proposedapproval-of-la-class-vi-primacy-application_2023jul03.pdf.

16 Lisa Song & Lylla Younes, “EPA finally calls out environmental racism in Louisiana’s Cancer Alley,” Grist, 19 October 2022: https://grist.org/regulation/epa-finally-calls-out-environmental-racism-in-louisiana-cancer-alley/.

17 Eliza Griswold, Amity and Prosperity: One Family and the Fracturing of America (Farrar, Straus, & Giroux, 2019): https://www.pulitzer.org/winners/eliza-griswold.

18 “Group asks EPA to deny West Virginia authority over carbon storage projects,” Parkerburg News & Sentinel,

19 August 2023: https://www.newsandsentinel.com/news/business/2023/08/groups-ask-epa-to-deny-west-virginia-authority-over-carbonstorage-projects/; “Castro, Doggett Urge EPA to Reject Texas Railroad Commission’s Application for Primacy of Class VI Carbon Dioxide Sequestration Wells,” 17 July 2023: https://castro.house.gov/media-center/press-releases/castro-doggett-urge-epato-reject-texas-railroad-commissions-application-for-primacy-of-class-vi-carbon-dioxide-sequestration-wells#:~:text=WASHINGTON%20%E2%80%93%20Representatives%20Joaquin%20Castro%20. 19 United States Environmental Protection Agency (EPA), Biden-Harris Administration Announces State and Tribal Allocations for $48 Million Grant Program to Protect Groundwater Resources and Tackle Climate Change. 2 November 2023: https://www.epa.gov/newsreleases/biden-harris-administration-announces-state-and-tribal-allocations-48-million-grant.

20 United States Environmental Protection Agency (EPA), Current Class VI Projects under Review at EPA, Accessed 14 December 2023: https://www.epa.gov/uic/current-class-vi-projects-under-review-epa.

21 United States Department of Energy (DOE), DOE Announces $40 Million to Provide Regional Technical Assistance Through Carbon Storage Partnerships, 1 December 2023: https://www.energy.gov/fecm/articles/doe-announces-40-million-provideregional-technical-assistance-through-carbon-storage.

22 United States Department of Energy (DOE), DOE Announces $40 Million to Provide Regional Technical Assistance Through Carbon Storage Partnerships, 1 December 2023: https://www.energy.gov/fecm/articles/doe-announces-40-million-provideregional-technical-assistance-through-carbon-storage.

23 EPA, “Prepublication State of Louisiana Underground Injection Control Program; Class VI Proposed Signed Rule,” via PoliticoPro “EPA gives Louisiana control over carbon sequestration wells,” 29 December 2023: https://subscriber.politicopro.com/f/?id=0000018c-b5ba-db9e-abbf-f7ba4fd90000&source=email

24 EPA, “EPA Response to Public Comments on the Louisiana Department of Natural Resources’ Class VI Primacy Application Docket ID: EPA-HQ-OW-2023-0073” via PoliticoPro “EPA gives Louisiana control over carbon sequestration wells,” 29 December 2023: https://subscriber.politicopro.com/f/?id=0000018c-b5ba-db9e-abbf-f7ba4fd90000&source=email

25 National Wildlife Federation and Data for Progress, In Progress, February 2024.

26 United States Office of Energy Justice and Equity, DOE Justice40 Covered Programs. Accessed 14 December 2023: https://www.energy.gov/justice/doe-justice40-covered-programs; United States Office of Fossil Energy and Carbon Management, U.S. Department of Energy Announces its Intent to Launch a Responsible Carbon Management Initiative, 11 August 2023: https://www.energy.gov/fecm/articles/us-department-energy-announces-its-intent-launch-responsible-carbon-management.

27 Rebecca Triche, “LWF Comment on Primacy LA Class VI wells final,” Louisiana WIldlife Federation, 29 July 2023: https://lawildlifefed.org/wp-content/uploads/LWF-Comment-on-Primacy-La-Class-VI-wells-FINAL.pdf.

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