Changing Federal Land Policy Can Encourage Carbon Capture Projects

The United States has the capacity to store more than 3,300 billion metric tons of carbon dioxide beneath its surface, according to a past study—sufficient space to sequester around 500 years’ worth of carbon dioxide emissions out of the atmosphere. This U.S. potential for carbon capture could be the difference between sustainable living or environmental catastrophe, based on the International Energy Agency’s suggestion that limiting global warming to 1.5 degrees Celsius will require carbon capture, utilization, and storage. But obstacles stand in the way of increasing carbon storage and sequestration on U.S. federal lands. In a recent article, University of Wyoming College of Law professor Tara Righetti and three coauthors propose several policy solutions that address these challenges, and may increase the use of U.S. carbon storage capacity. Righetti and her coauthors explain that a carbon storage project needs legal rights to use what is known as subsurface pore space—a term that generally refers to the underground space where carbon can be stored. Yet no definition of pore space exists in statutes or regulations that govern federal land management, making it difficult to determine which entities may use pore space and how. This regulatory gap exemplifies the broader lack of statutory clarity facing carbon storage projects on federal lands. It also suggests a serious need for future clarification as to what “processes, rules, and regulations” guide pore space use on federal lands. Moreover, it is often unclear how a project would obtain the rights to pore space in the first place. Righetti and her coauthors suggest that in certain contexts, such as on national forest lands, the U.S. Bureau of Land Management (BLM)—the agency charged with managing mineral rights on federal lands—may not even have the authority to grant leases for pore space use. BLM is also tasked with developing resource management plans that balance mineral development with other competing interests, such as timber harvesting and energy development. Carbon sequestration projects, however, are not currently evaluated as a “potential use of public lands” in current resource plans. Going forward, Righetti and her coauthors argue that future resource plans should be modified to include carbon storage in resource management plans for public lands. Directing agencies to incorporate carbon storage into resource planning, management goals, and management decisions will prompt agency actions, such as beginning environmental reviews, that are necessary to streamline sequestration project approvals. Including carbon storage capacity in resource management plans will also help avoid some of the public concerns associated with carbon storage projects, such as local environmental impacts. Furthermore, incorporating storage capacity into resource management plans can help “harmonize requirements” between agencies with overlapping authority. More broadly, Righetti and her coauthors recommend the passage of federal legislation to determine which agencies should hold the authority to govern pore space and to give agencies the authority to allow third party use of pore space. Next, Righetti and her coauthors identify environmental impact reviews required under the National Environmental Policy Act (NEPA) as potentially “time consuming and costly” obstacles to carbon storage projects. These reviews often require multiple layers of analysis and different agency approvals. To relieve the burden of NEPA review on carbon storage projects, Righetti and her coauthors advocate excluding certain activities related to carbon capture, utilization, and storage projects. They submit that exclusions should only be for small elements of projects, such as granting pore space rights to a developer when there are no accompanying “surface operations.” They also oppose any exclusions for larger-scale elements of carbon storage projects such as pipeline construction. This balanced approach, the authors argue, would improve the efficiency of the review process without undermining the fundamental goals of NEPA. Finally, Righetti and her coauthors consider the issues that arise when one person or agency owns land surface rights, but another entity owns the mineral or subsurface rights. This kind of split ownership complicates carbon storage projects by, for example, requiring a project developer to obtain a disclaimer of rights from whichever federal agency oversees the land. In such situations, judicial rulings would help solve ownership disputes by determining which entity owns pore space. Since current statutes are unclear as to whether federal mineral rights include pore space, Righetti and her coauthors suggest that a court decision finding that the United States does not retain rights to pore space would ameliorate the problem of split land rights. Judicial rulings could also exempt carbon storage projects from comprehensive NEPA review if they do not overlap with federal surface lands. Carbon capture—in coordination with a range of other solutions—is likely a necessary component of any meaningful attempt to solve the crisis of climate change. The United States has ample capacity for carbon storage on government-owned land, and making some simple regulatory changes could unlock new pathways toward a greener future, conclude Righetti and her coauthors