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Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 5-2018 NEWS & ANALYSIS 48 ELR 10425 taxation laws and regulations may need to address whether persons who generate negative emissions can qualify for a tax credit or rebate. In analogous circumstances, the fed- eral government has generally not allowed the taxation of an activity as a form of regulation or discouragement (e.g., “sin taxes” on liquor and cigarettes) to automatically enable the payment of tax credits or rebates to persons who actively remove those undesirable goods or activities from the market.102 While EPA and delegated states would likely have the regulatory authority to authorize tradable credits or tax rebates for GHGs removed directly from the atmo- sphere, that step would almost certainly require legislation or rulemaking. streams. Some proposed removal technologies would create a pure CO2 stream that can serve as a commercial feedstock or product itself. These uses, for example, can include using a captured pure CO2 stream to produce syn- thetic fuels.103 If this type of synthetic fuel was eventually marketed in the United States for use in light-duty auto- mobiles or other mobile sources, that fuel would have to satisfy regulatory requirements under Title II of the federal CAA. These requirements include stringent limits on the volatility, oxygen content, sulfur concentrations, viscosity, and other qualities and components of fuels commercially marketed to be burned for energy.104 (The DDPP scenarios all assume that by 2050, light-duty vehicles will make lim- ited use of liquid fuels.) . If a NET facility operates in a fashion that purport- edly injures particular individuals or the public at large, the persons responsible for the operation may face private and public tort actions. For example, if a DAC facility with- draws enough CO2 at a fast enough rate to arguably affect local environmental conditions or ecosystems, landowners who reside near the facility may claim that the operators have created either a public or private nuisance or have acted negligently in their operation of the plant.105 Admittedly, this prospect appears extremely unlikely given the removal 102. A person who purchases tobacco or alcohol (or their precursors) to remove them from the market typically cannot seek credits or reimbursement of the taxes that a consumer of those goods would have ultimately paid if they had otherwise been sold and consumed. The Internal Revenue Code, for example, does not provide any exemption from cigarette excise taxes to per- sons who purchase cigarettes for non-consumptive use (other than transfers of title associated with bonding in warehouses). 26 U.S.C. §5407. 103. Carbon Engineering, , http://carbonengineering.com/about-a2f/ (last visited Mar. 19, 2018); see also Hilary Brueck, This Company Wants to , Forbes, July 24, 2015, https:// www.forbes.com/sites/hilarybrueck/2015/07/24/this-company-wants-to- recycle-carbon-dioxide-from-the-atmosphere/#13db3f79212e. The relative purity of the CO2 stream generated by this company’s DAC process would presumably make it suitable for use in manufacturing, pharmaceuticals, food processing, and enhanced oil recovery operations. 104. 42 U.S.C. §§7521-7590 (Title II of the federal CAA, setting out standards for fuels for on-road and off-road vehicles, aviation, motor emission specifi- cations, clean vehicles requirements, and renewable biofuels). 105. Interestingly, once a person begins a DAC operation, he or she may incur an ongoing duty to perform it competently even if the person had no duty to originally undertake the DAC. Many states have Good Samaritan laws, however, that may shield an individual from potential negligence tort li- rates promised by current technologies and the fast mixing rates of ambient CO2. But the scales of DAC required to approach a significant impact on existing CO2 stockpiles in the atmosphere may theoretically spur development of future technologies that might raise this concern in future permitting or approval deliberations. Alternatively, emis- sions from other associated equipment or water and waste discharges may interfere with the ability of nearby land- owners to enjoy the use of their property in a fashion that gives rise to a private nuisance claim, but these types of tort claims for ancillary emissions are common features to any industrial operation and are not unique to NET facilities. More powerfully, NET operations that purportedly interfere with a right held by the public in general—for example, preventing damage to public resources such as public waterways or ambient air—can spark a public nuisance action. While such actions might typically be brought by the governmental authority with responsibil- ity for the public resource or right imperiled by the NET operation, private parties could also bring a public nui- sance action if they can prove that they suffered a special injury distinct from the general public.106 Such claimants, however, will face difficult challenges in proving that the NET’s reductions of CO2 have directly and proximately caused their special injuries. The facility operator could also respond that the NET operation serves larger public interests that outweigh the special injury underlying the alleged public nuisance.107 . Beyond attempts by domestic governments to halt or regulate OIF projects in their jurisdictional waters, the prospect of field testing OIF on the high seas has already spurred action under international agreements to protect marine waters. For example, some of the Parties to the London Convention, the primary international agreement to restrict disposal of pollution into international waters,108 have entered into a ability if he or she undertakes action to save the life or property of another person. See discussion supra note 14. 106. Denise E. Antolini, , 28 Ecology L.Q. 755 (2001). 107. One tort action frequently brought against environmental releases or distur- bances—trespass—will have a less likely role in challenges to DAC. Trespass actions require the intentional invasion of the real property interests of an- other party. Absent any direct intrusion onto an adjoining property, with DAC, the action that might affect a nearby landowner would be the removal of CO2 from the ambient atmosphere that might otherwise pass over the neighbor’s land. From this perspective, the removal of such airborne gas might constitute a reverse trespass (taking of something that another per- son might expect to cross onto his or her property). . J.B. Ruhl, Making , 58 Case W. Res. L. Rev. 753 (2008) (action on one’s own property that indirectly results in degradation of ecosystem services on another person’s property may constitute actionable tort). If they do not have a property right in the CO2 captured on someone else’s land, however, the adjoining neighbors probably do not have a trespass or wrongful taking tort action. 108. The London Convention is an international organization consisting of 86 Member States, and it implements the London Convention of 1972. This Convention controls the discharge of pollutants into the high seas. In 1996, the Parties to the Convention agreed to the London Protocol as a step to modernize the Convention and—ultimately—to replace it. The London Protocol takes a muscular stance by prohibiting all dumping into the high seas (except for potentially acceptable wastes on the so-called reverse list). The Protocol entered into force on March 24, 2006, and 38 States havePDF Image | NET Legal Pathways
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