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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 10424 ENVIRONMENTAL LAW REPORTER 5-2018 critical habitat and jeopardize valuable alternative uses of those lands (e.g., agricultural food production). These concerns persist, and they may lead to legal con- straints that would impede the broad implementation of NETs. But subsequent development of potential technolo- gies promises to alleviate some of these legal objections. For example, at least one of the DAC methods under devel- opment would use relatively small modular units that co- located or stacked vertically.96 This arrangement promises much greater operational efficiency and reduced demands for surface land space. In addition, these types of land use demands also hover over other large-scale renewable energy technologies or decarbonization strategies (in particular, techniques that rely on BECCS). To the extent NETs face these challenges, they differ only in degree rather than quality. Moreover, some NETs under development rely on natural wind rather than fans for air flow, and thus have low electricity demands. In addition to surface land area, many versions of NETs will likely require the acquisition and use of subsurface strata or geologic formations to sequester captured CO2. To some extent, these challenges will mirror the same legal hurdles that will face the deployment of CCS in large-scale industrial operations and power production. Many of the same legal steps and strategic approaches that promote the use of captured CO2 for secondary hydrocarbon produc- tion (such as state legislation to clarify the ownership status of pore space in mineral estates, or regulatory determina- tions on the status of sequestered CO2 as a potentially haz- ardous waste under federal and state waste management statutes) could also be used for CO2 captured by NETs for permanent sequestration. These issues are discussed in greater detail in the following section. B. Legal Permits and Compliance Obligations for Ongoing NET Operations Even if the core action of removing GHGs from the atmo- sphere does not require environmental permitting or autho- rization, NET operations may require corollary industrial activities that could trigger other environmental obliga- tions. Some of the most notable are listed in this section. Integration into GHG permitting and trading. NET operations, by definition, will almost certainly not emit sufficient CO2 to trigger requirements to obtain a permit for GHG emissions under the federal CAA’s PSD program. This legal framework requires major emitters of criteria air pollutants to obtain permits that limit their emissions to amounts that would keep the ambient air from growing significantly worse or failing to meet national ambient air quality standards (NAAQS).97 First, the legal basis for 96. Lawrence Krauss, , Slate, May 13, 2013, http://www.slate.com/articles/technology/future_tense/2013/05/di- rect_air_carbon_capture_technology_must_be_developed_to_help_fight_ climate.html. 97. Arnold W. Reitze, Stationary Source Air Pollution Law 174-80, 195-202 (2005) (general description of the PSD permitting program). See also National Research Council of the National Academy of requiring PSD permits for sources that emit only CO2 is highly questionable after the U.S. Supreme Court rejected EPA’s regulations to control CO2-only sources, especially given President Donald Trump’s subsequent order that EPA reconsider and withdraw its regulations to control GHG emissions from new and existing fossil-fueled power plants.98 Even if the compression equipment, power sup- plies, or other ancillary operations associated with NET units emit enough other conventional pollutants to require issuance of a PSD or NNSR permit and therefore weigh possible GHG reductions in selecting control technologies, the use of netting or offsets due to the GHGs removed by the NET99 would likely exempt the facility from the need to consider GHG controls associated with its control tech- nologies used for other regulated pollutants. The removal of GHGs from the atmosphere may also create tradable emissions reduction credits for use in PSD or NNSR programs for other industrial sectors, state GHG control programs, or internationally tradable credits autho- rized under other nations’ GHG programs. If so, NETs may theoretically become integrated into federal and state CAA permitting as a tool to allow GHG emitters to come into compliance with emission limits through the purchase of offsets or emissions reduction credits. To date, however, EPA and state environmental agencies have not addressed whether GHGs removed through NETs would create emissions reductions that can be banked, traded, or used for offsets or netting.100 Some states, and ultimately the federal government, may choose to discourage GHG emissions through use of a carbon tax or tax credits.101 To the extent that NETs result in the large-scale removal of CO2 or other GHGs, federal Sciences, Air Quality Management in the United States 177-86 (2004) (same). 98. Utility Air Regulatory Group v. Environmental Prot. Agency, 134 S. Ct. 2427, 44 ELR 20132 (2014); Exec. Order No. 13783, supra note 39, sec. 4 (directing review and, if warranted, withdrawal of Clean Power Plan). 99. See Reitze, supra note 97, at 184 (general discussion of using bubbling, net- ting of internal emissions, and offsets from internal and external sources of emissions to keep a facility’s emissions below a threshold that would trigger permitting requirements under Title I of the federal CAA). 100. EPA proposed limits on GHG emissions for new fossil-fueled power plants that anticipate the use of CCS by the power plant. To the extent that captur- ing CO2 at the emission points of a power plant are analytically indistin- guishable from CO2 captured outside the plant’s fenceline, EPA’s acceptance of CCS for new source performance standards might suggest that CO2 cap- tured by DAC could be used to demonstrate attainment or compliance with a performance standard (assuming the emission captures were reliable, veri- fiable, and quantifiable, and that DAC operations did not create other envi- ronmental harms or perverse incentives). Given the pending reconsideration and likely withdrawal of these rules as part of the Trump Administration’s reconsideration of the Clean Power Plan, however, this option is now likely purely hypothetical. 101. The Clean Power Plan had preserved the option for states to adopt a car- bon tax as a strategy to demonstrate attainment of the emissions reductions required by the rule. But see discussion supra note 39 (reconsideration, and likely withdrawal, of Clean Power Plan). To date, no state has adopted a carbon tax as a method of GHG reduction or for regulatory compliance purposes. Yoram Bauman & Charles Komanoff, Carbon Tax Center, Opportunities for Carbon Taxes at the State Level 7-8 (2017), avail- able at https://www.carbontax.org/Opportunities_for_Carbon_Taxes_at_ the_State_Level.pdf. If a state adopted a carbon tax, it is unclear whether the federal government would allow individuals or businesses to deduct their payment of state carbon taxes from their federal tax obligations (either as a business expense or as a state tax).PDF Image | NET Legal Pathways
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