EPA’s Regulatory Roll-Back

In March 2025, Administrator Zeldin announced that EPA will reconsider a number of regulations in order to advance various executive orders issued by President Trump and fulfill EPA’s own Powering the Great American Comeback Initiative. These efforts include the 2024 ambient air standard for particulate matter, the 2009 endangerment finding, and the scope of jurisdiction over ‘adjacent wetlands after the Supreme Court’s 2023 decision in Sackett.

In the Biden Administration, EPA lowered the National Ambient Air Quality Standard for particulate matter, the PM 2.5 NAAQS. The standard was reduced to levels that were close to background levels in some areas. EPA announced it is “revisiting” the lower standard because, among other things, the lower standard “raised serious concerns from states across the country and served as a major obstacle to permitting.”

So far, though, EPA has not issued a proposal to revisit the PM 2.5 NAAQS. It faces some hurdles in doing so. It must be done through the administrative rule-making process, which includes public notice and comment. Further, to survive judicial review, EPA must provide a reasoned explanation for the basis of the revision. EPA also stated it would “soon release guidance to increase flexibility on NAAQS implementation…and direction on permitting obligations.” However, these items have not yet been issued.

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The Fading Luster of Carbon Capture

Carbon dioxide (CO2) is used to carbonate beverages and enhance plant growth. It has also been used for decades in enhanced oil recovery, in which CO2 is injected into oil- or gas-bearing formations to help extract oil and gas. Of course, many say that CO2 causes or contributes to climate change / global warming. In 2009, EPA issued its ‘endangerment finding’ in which EPA determined that current and projected concentrations of CO2 and other greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations.

The idea of capturing CO2 before it enters the atmosphere and using it or injecting it for perpetual storage, or sequestration, came about as a way to mitigate the anticipated impacts of climate change. To facilitate carbon capture, use, and storage (CCUS), Congress created the 45Q tax credit in the US Tax Code. Additionally, the Biden Administration touted CCUS as an important tool to address climate change. Even the prior Governor of Louisiana included it as a centerpiece of his climate strategy.

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Texas and Louisiana Move Towards State Primacy For Carbon Capture Projects

Carbon capture, use, and sequestration (CCUS) projects are regarded as a viable means to reach the ambitious goal of net zero carbon dioxide (CO2) emissions by 2050. Many claim that CCUS provides the only means to achieve that goal.

CCUS captures CO2 at its source, such as a petrochemical facility or a power plant using coal or natural gas. Captured CO2 has been used for enhanced oil recovery (EOR) projects for decades, without major incident. Alternatively, captured CO2 may be injected for permanent sequestration thousands of feet underground in deep rock formations.

The benefits of sequestering CO2 would seem obvious. At the very least, CCUS will reduce the amount of CO2 in the atmosphere and create millions in investments and thousands of good jobs. However, many environmental groups oppose CCUS because it allows the continued use of fossil fuels and slows the growth of renewable energy, such as wind and solar. Additionally, under the Biden Administration, claims are now being made that CCUS creates a disproportionate impact on minority, indigenous, and poor communities.

For the most part, CCUS projects must be approved by EPA and the state in which the project is located. Dual permitting is inefficient and hinders the prompt permitting of sequestration projects. However, EPA may grant a state “primacy,” which will allow the state in which the project is located to become the sole permitting and enforcement authority. This is beneficial to the proponent of the project as only one permit application needs to be filed and one permit obtained.

According to EPA’s web-site, Wyoming and North Dakota are the only two states to achieve primacy over carbon sequestration (Class VI wells) permitting and enforcement. However, Texas and Texas are moving towards obtaining primacy so that projects can more easily move forward.

In 2021, the Texas Legislature passed House Bill 1284, which gave the Railroad Commission sole jurisdiction over CCS projects. In August 2022, the RRC approved bringing the Texas regulations closer in line with federal standards. It is expected that these changes will help to expedite EPA’s processing of Texas’ forthcoming primacy application. EPA’s web-site identifies Texas as being engaged in “pre-application activities.”

Louisiana is farther along in the process. Louisiana submitted its primacy application in September 2021. EPA published a proposed rule in May 2023, which would grant primacy to Louisiana for the Class VI program. A sixty-day public comment period was established and a public hearing was held in Baton Rouge. Over 17,000 on-line comments have been received and dozens spoke at the public hearing. After reviewing the comments, it is expected that EPA will issue a final rule granting primacy by the end of the year.

Louisiana has also made several important statutory revisions to its state program. For example, each application for a Class VI injection permit must include a NEPA-like environmental analysis, which addresses whether environmental effects have been avoided to the maximum extent possible and whether a cost-benefit analysis shows that the social and economic benefits of the proposed activities outweigh the environmental impact costs. Additionally, the length of time to obtain a certificate of completion of injection operations, which serves to transfer liability to the state, has been lengthened from ten years to fifty years.

Obtaining primacy should foster more efficient and timely permitting, unlocking the potential for economic growth and reaching climate goals. Hopefully, EPA will act promptly on primacy applications so all states may receive the benefits.

The CPP Meets SCOTUS

The Supreme Court recently issued a stay of the Clean Power Plan, the Obama Administration’s signature regulation addressing greenhouse gas (GHG) emissions from existing power plants.

The Clean Power Plan (CPP) imposed the first-ever national standards to limit carbon dioxide (CO2) emissions from existing power plants. The CPP relies on Clean Air Act (CAA) Section 111(d) and established interim and final CO2 emission performance rates for fossil fuel-fired (mainly coal or oil) electric generating units. States are required to develop and implement plans to ensure that power plants achieve the interim CO₂ emissions performance rates over the period of 2022 to 2029 and the final CO₂ emission performance rates by 2030. The initial state plan was due on September 6, 2016 with final, complete state plans submitted no later than September 6, 2018. Continue reading “The CPP Meets SCOTUS” →

The Goal? No Coal!

The EPA has issued its long-awaiting proposed rule to curb carbon dioxide (CO2) emissions from existing fossil fuel-fired electric generating units (EGUs). Although there has been a much-heralded ‘pause’ in global warming over the last 16 years, EPA is moving ahead to fulfill President Obama’s Climate Action Plan, in which he calls for a reduction in CO2 emissions from power plants, and to otherwise achieve his stated goal of bankrupting coal plants.

CO2 is the primary greenhouse gas (GHG), accounting for 82% of US GHG emissions and 75% of global GHG emissions. Electricity generation accounts for 32% of GHG emissions and fossil fuel-fired EGUs are by far the largest emitters of GHG. Continue reading “The Goal? No Coal!” →

An Inconvenient Irony

Hydraulic fracturing, or fracking, remains the target of many environmental groups and some governments who seek to prohibit or significantly curtail the practice. Fracking, however, has provided an abundance of cheap natural gas, which has played a major role in the dramatic decrease in the amount of carbon dioxide (CO2) emitted in the United States. The decrease in CO2 and the role fracking has played in it has created an interesting, and perhaps inconvenient, irony.

The combustion of fossil fuels (such as coal, oil, and natural gas) in the energy, transportation, and industrial sectors creates the vast majority of greenhouse gases (GHG). Coal combustion creates much more CO2 than the combustion of natural gas. CO2 is the most abundant of GHG and remains in the atmosphere much longer than other GHG, such as methane. Although methane and other GHG have a higher global warming potential, the large amount of CO2 emitted into the atmosphere has been a major focus of the climate change (formerly known as ‘global warming’) debate. Recent Environmental Protection Agency (EPA) regulations and the Kyoto Protocol are examples of national and international efforts spurred by environmental groups seeking massive decreases in CO2 emissions. Continue reading “An Inconvenient Irony” →