The Law of Direct Air Capture and Climate

The Law of Direct Air Capture and Climate

The Law of Direct Air Capture and Climate Change Regulation Prof. Tracy Hester Nov. 15, 2017 The Varieties of Direct Air Capture Mechanical Direct Air Capture Carbon Capture & Storage (CCS) Biological Energy + CCS

(BECCS) Ocean Iron Fertilization Biochar Soil enhancement Ocean CO2 entrainment Afforestation Air Fuel Capture Direct Air Capture and Environmental Law

Possible international legal issues U.S. environmental law and DAC Authorizations and permits for DAC process itself Requirements and liabilities for environmental impacts from DAC Pathways ahead Direct Air Capture and the Paris Agreement 1. Implementation of

Paris Agreement update on Bonn 2. 1.5 degree target, NET and NDCs 3. ITMOs, NETs and unfinished business 4. Other treaties 5. Sustainable Development Goals

Governance under U.S. environmental laws: regulation by surrogate Note that all of short-term regulatory options will likely focus on regulating DAC through its environmental side effects. Consequence of the black box model to U.S. environmental regulation, which consciously seeks not to regulate the production process itself

Clean Air Act (BACT, MACT, LAER) Pollution Prevention Act of 1990 Toxic Substances Control Act Governance by Environmental Surrogate

Initial legal posture for Direct Air Capture Legal Advantages of DAC Pace Reversibility Familiar Likely focus of initial challenges Permits and approvals for the capture process itself

Management of captured CO2 Legal status of products or materials generated from captured CO2 Permits for Direct Air Capture Process Itself All heavily dependent on facts of individual process In general, same environmental constraints as for any industrial process (air emissions, spent media). Not insurmountable. But some quirks:

Clean Air Act content and certification requirements for fuels Integration of captured CO2 into existing GHG permit programs Backdoor BACT Environmental Impact Statements and analyses Environmental Legal Requirements for Captured CO2 Driven by CCS debate Example: RCRA conditional exclusion for captured CO2

Heavily keyed to ultimate fate of CO2 Class VI vs Class I wells Limited to CO2 captured from source Feedstock and commercial use exemptions

Solid waste management requirements Tort liability TSCA notification and premanufacture approvals Legal status of projects manufactured from captured CO2 Rule of capture for ownership Derived-from rule (if hazardous waste) Fuels

Placed onto ground Ownership upon injection for disposal? Thought Experiment Possible paths for reform Exemptions from environmental requirements for research-scale projects Continued regulatory development of carbon capture and storage

Deep Decarbonization Pathways Project Proposals for regulatory roadmap or coordination memorandum Increasing likelihood for carbon trading or tax Professor Tracy Hester University of Houston Law Center [email protected] 713-743-1152 (office)

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