Reed Smith Client Alerts

Carbon capture and sequestration is the process of capturing carbon dioxide released from industrial processes and storing it, inter alia, in pore spaces deep beneath the earth’s surface. States have begun to enact legislation to clarify the guidelines and procedures in order for these innovative projects to proceed within their state. Currently West Virginia, Nebraska, Wyoming, North Dakota, Louisiana, and Montana have passed legislation involving pore ownership and liability for stored carbon.
coal power station and night blue sky

If enacted, Pennsylvania will join the small group of other states that have enacted such laws, including neighboring West Virginia

The need for carbon capture sequestration legislation is of particular interest in light of the United States Supreme Court’s recent decision in West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780, 2022 U.S. Dist. LEXIS 3268, (June 30, 2022). There, the Court held that the Environmental Protection Agency (EPA) could not employ strategies like the Clean Power Plan,1 a proposal by the Obama administration. Instead, the Court held that the agency should rely solely on its traditional approach of emission regulation, meaning that it has the authority to regulate pollution control equipment in power plants in order to lower emissions at the source. Thus, carbon capture and sequestration (CCS) projects may be one of the technologies that the EPA can use as a tool to regulate emissions from power plants while still having the potential to survive the Supreme Court’s scrutiny.2

Pennsylvania lawmakers may be joining this handful of other states to directly address CCS operations. Despite the current lack of legislation in Pennsylvania, it has been reported that companies have already met with Pennsylvania’s environmental regulators to discuss plans for developing the state’s first carbon dioxide wells deep underground. One place to look for a potential model for Pennsylvania’s statute could be its neighbor to the southwest, West Virginia.