The EPA’s Proposed Carbon Capture and Storage Regulations: A Trial Lawyer’s Dream

In May, the US Environmental Protection Agency proposed new regulations that will require power plants to capture almost all their CO2 emissions, compress them, transport them via a network of pipelines, and store them underground. The plan is economic folly, but the problems go beyond money: CO2 injected underground may well escape into the atmosphere or contaminate underground water supplies, either of which could yield deadly results and create a feeding frenzy of litigation. The liability risks will be another nail in the coffin for the country’s reliance on fossil fuels to supply electricity, which in 2022 accounted for about 60% of all generation.     

Consider the case of Cameroon. In 1986, an eruption of CO2 took place at Lake Nyos, which released several hundred thousand tons of CO2. Because CO2 is denser than air, it spread along the ground, asphyxiating between 1,700 and 1,800 people living nearby. The cause of the eruption has never been determined. It might have been a small earthquake, a landslide, or even a volcanic eruption. Could such an event recur domestically? Just the specter of the possibility is enough to give pause, which is exactly what Biden’s EPA hopes to do.

The EPA claims that its new regulations for fossil fuel power plants will sequester over 600 million metric tons of CO2 between 2030 and 2042.  By comparison, US energy-related CO2 emissions were about 4.7 billion metric tons last year, while world emissions were about 36.8 billion metric tons.  Hence, over this dozen-year period, the agency’s proposed sequestration mandate would reduce CO2 emissions by the equivalent of six weeks of US emissions and six days of world CO2 emissions.

Then there’s the question of physical reality. To comprehend the scale of carbon capture and storage (CCS) envisioned by the EPA, consider frozen CO2, better known as “dry ice.” One cubic foot of dry ice weighs about 52 pounds.  Although sequestering 600 million metric tons of CO2 will have no measurable impact on world climate, the physical quantity of CO2 to be sequestered will be equivalent to a cube of dry ice approximately 3,000 feet on each side or 25 million tanker trucks hauling liquid CO2.

Environmental groups are already raising the alarm over building necessary pipelines to carry CO2 that will be stored underground.  And the impact of injected CO2 on groundwater has long been a concern of environmentalists and the EPA itself.  Moreover, some states, such as Illinois, appear unwilling to allow CCS within their borders.  Senate Democrats recently introduced legislation to limit the ability of states to reject giant transmission lines to deliver wind and solar power from rural areas to cities.  Will DC politicians also force states to accept CO2 pipelines and sequestration sites?

The EPA already regulates injecting carbon underground because of the potential for groundwater contamination. But the massive volumes of CO2 that will have to be sequestered under the agency’s new power plant rules will create yet another regulatory bottleneck to ensure none of that CO2 contaminates groundwater: EPA will be able to deny permits to the same power plants whose carbon the agency will require to be sequestered.  And, in the event such contamination does occur, or an earthquake causes a release of underground CO2 into the atmosphere after EPA has issued the necessary permits, the legal battles, especially regarding liability, will be swift, severe, and a boon for trial lawyers. 

Will power plant owners be held liable, much as some states are attempting to make gun manufacturers liable for crimes committed with their guns?  If so, how will power plant owners insure themselves against the potential liability of millions of tons of CO2 escaping into the atmosphere and causing the deaths of thousands living nearby?  Will owners of the land at injection sites be liable? Would the liability be criminal or just civil? For example, in June 2020, Pacific Gas & Electric pled guilty to 84 counts of manslaughter because the company’s negligence caused the 2018 Camp Fire.  More recently, PG&E has been charged with 11 counts of manslaughter for causing the 2020 Zogg Fire. Imagine the intense pressure to assess criminal charges for a CO2 release that killed thousands of people.

If the EPA’s proposed regulations are enacted, the legal minefields, coupled with the high costs and technological hurdles of CCS, will be a death sentence for fossil fuel generation in this country.     

That’s surely the real intent.

Jonathan Lesser is an adjunct fellow at the Manhattan Institute and president of Continental Economics.

This article was originally published by RealClearEnergy and made available via RealClearWire.