EPA Approves Class VI Primacy in Louisiana

On December 28, 2023, EPA approved Louisiana’s application to assume primary enforcement authority (primacy) for carbon sequestration injection wells, known as “Class VI” wells under the EPA’s Underground Injection Control program. This approval comes over two years after Louisiana’s application was filed in September 2021. Louisiana will become the third state to receive Class VI primacy, following North Dakota (2018) and Wyoming (2020).

To date, states with primacy have been able to review and issue Class VI permits on a much quicker pace than the federal EPA. North Dakota has issued Class VI permits to five CCS projects since receiving primacy, and Wyoming issued permits to its first CCS project earlier this month. The permit review period for these state-administered programs is often less than one year. In contrast, EPA estimates a permit review period of over two years and has issued permits to only two projects since the inception of the Class VI program in 2010 — both issued under the Obama administration. EPA has, however, issued draft permits to two projects this year — one in Indiana and one in California — that it expects to finalize in 2024.

With 22 CCS projects in Louisiana with Class VI permit applications pending — over one-third of the total applications in the U.S. and double that of the next-highest state (California) — the shift to state primacy is likely to be a welcome development for project proponents. The move may also relieve pressure on EPA Region 6 which, led by Louisiana, had nearly triple the number of pending Class VI applications as any other region.

EPA’s final rule also touts the environmental justice (EJ) provisions in Louisiana’s primacy application, including “elements related to implementing an inclusive public participation process, incorporating EJ and civil rights considerations in permit review processes, enforcing Class VI regulatory protections, and incorporating mitigation measures.” Permit applicants will be required to conduct an EJ review, assess alternative site locations, and propose mitigating measures to ensure any potential adverse environmental effects are minimized. Louisiana also has committed to examine the potential risks of each proposed Class VI well to minority and low-income populations, evaluate proposed sites using EPA’s Environmental Justice Screening and Mapping Tool (EJ Screen) and hold an enhanced public comment period if increased risk factors are identified.

More information on state-by-state trends in CCS permitting and legislation is available at Arnold & Porter’s interactive CCUS Tracker, a collaboration with the Sabin Center for Climate Change Law at Columbia Law School.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.