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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 48 ELR 10422 ENVIRONMENTAL LAW REPORTER 5-2018 unit or array would use the same type of capital machinery deployment, land acquisition, site development, and utility and power infrastructure that we would expect for a pipe- line or modest power production facility.78 While the use of these construction and infrastructure approaches could raise significant and important concerns (e.g., the impact of DAC deployment within a protected species’ critical habitat), those risks would be fundamentally familiar and amenable to conventional environmental assessment and permitting procedures. Last, the full deployment of NETs would likely result in only a diffuse impact on the local ambient atmosphere sur- rounding the NET facilities. Given the low concentrations of CO2 under ambient atmospheric conditions and the long residence time of emissions, CO2 becomes well-mixed under normal conditions and quickly reaches a stable con- centration level on a global basis. Given these constraints, even a large-scale operation likely would not uptake CO2 at a rate substantially higher than the rate at which CO2 from other regions would flow in to replace it.79 While these general features suggest that NETs will not pose some of the heightened concerns of other climate engineering methods, they will nonetheless face significant legal barriers to their full deployment. These barriers in turn may prevent or at least materially impair NETs from assisting in the deep decarbonization of the U.S. economy needed to attain the Paris Agreement temperature targets. As noted previously, the legal issues will likely arise in three categories: (1) getting the necessary permission and approvals needed to construct and initiate NET facilities; (2) managing the legal obligations that might apply to typical NET operations; and (3) identifying and minimiz- ing any environmental or physical risks arising from NET wastes and emissions that could cause legal liability. This section discusses each category in turn. A. Legal Permissions and Authorizations to Construct and Initiate NET Operations As with any other significant industrial or commercial operation that might affect the environment, the construc- tion and startup of certain types of NETs may trigger requirements to obtain environmental permits or autho- rizations. Until the precise physical parameters of a large- scale mechanical NET operation come into focus, however, it is difficult to predict what environmental authorizations or permits they will need. For example, if a DAC unit will use compression equipment that emits significant amounts of conventional air pollutants, the operator may need to 78. This assumption relies on current models of DAC under development in re- search laboratories. A large-scale DAC process that uses novel or unexpected technological approaches, of course, might require the use of unanticipated methods and resources for its construction. 79. U.S. EPA, (discussing residence and mixing times of CO2), https://www.epa.gov/ghgemissions/overview-greenhouse- gases (last updated Apr. 14, 2017). If DAC processes reach unexpectedly effective and speedy removal rates, however, the local impact on CO2 on the surrounding ambient airshed might require further assessment and le- gal consideration. obtain a preconstruction permit for emissions regulated under the federal Clean Air Act’s (CAA’s)80 programs for prevention of significant deterioration (PSD) or nonattain- ment new source review (NNSR). It is unclear, however, whether such technologies will require the use of ancillary equipment that will constitute a major source under either the PSD, NNSR, or analogous state air quality programs.81 Until the precise aspects of a NET facility are estab- lished, a wide range of possible environmental authoriza- tion and permitting obligations may apply to the unit’s construction, startup, and authorization (and, ultimately, its shutdown and decommissioning). Notably, almost all of these requirements will be the typical environmental, health, and safety regulatory approvals needed for any large capital construction project with potentially significant environmental effects. Some aspects of particular types of NET operations, however, may trigger unusual environ- mental permitting obligations that would uniquely apply to its type of production and operation. As an initial step, an agency would need to address the fundamental conundrum of regulating an activity that removes a pollutant from the ambient atmosphere. The federal CAA only prohibits the emission of pollutants without authorization, and the removal of gases from the ambient atmosphere would normally not trigger regula- tory concern unless another person suffered an environ- mental impact or had an ownership claim in the removed gas. Industrial gas producers who collect, condense, and liquefy ambient atmospheric gases have historically not needed an environmental permit to authorize the removal of gases.82 Under these precedents, the core feature of NETs—removal of GHGs from the atmosphere—will almost certainly fall outside permitting requirements under federal or state CAAs.83 80. 42 U.S.C. §§7401-7671q. 81. Even if federal and state requirements applicable to major sources will not apply to certain DAC facilities, other state environmental laws and permit- ting requirements may still affect the DAC unit’s operation. For example, many states maintain minor source permitting programs that could apply even to DAC units that emit only low levels of regulated air pollutants. See, e.g., 30 Tex. Admin. Code ch. 117, subch. D (regulation of minor sources in ozone nonattainment areas). 82. See, e.g., Texas Commission on Environmental Quality, Site Operating Per- mit Revision Application Guidance 10 attachment C (2017) (list of insig- nificant activities whose emissions do not require New Source Review or Title V permits includes “[a]ny air separation or other industrial gas produc- tion, storage, or packaging facility. Industrial gases, for purposes of this list, include only oxygen, nitrogen, helium, neon, argon, krypton, and xenon.”) The U.K. has taken a similar position. Environment Agency, Regulatory Position Statement 032: Permitting of Air Separation Units (Nov. 2015), https://www.gov.uk/government/uploads/system/uploads/attachment_ data/file/477544/LIT_9932.pdf. In general, atmospheric gases fall within the category of natural items that no person owns until they are captured or controlled. 83. Recent cases seeking to declare that the atmosphere and its constituent gases fall within the public trust doctrine, however, might alter this legal precon- ception if a court determines that the public has an undifferentiated right to the atmosphere under which governments have a fiduciary duty to protect. See, e.g., Michael C. Blumm & Mary Christina Wood, - , 67 Am. U. L. Rev. 1 (2017).PDF Image | NET Legal Pathways
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