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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 10428 ENVIRONMENTAL LAW REPORTER 5-2018 disposal via recycling or reuse.129 While these two scenarios would trigger significantly different management require- ments, the environmental risks posed by the storage and disposition of captured CO2 are largely the same for each. EPA could address these legal concerns by exempting from RCRA CO2 captured by NETs, provided necessary pre- cautions were taken. . Like any other industrial process, large- scale NETs will likely generate their own process wastes and emissions (apart from the CO2 that they capture). Some iterations of DAC, for example, will likely require substantial power generation, compression equipment and processes, and the use of substantial quantities of absorbent chemicals or catalysts. Other proposed DAC technologies would use catalytic surfaces to capture ambient CO2 and then release it via a water wash or acid release. Spent chemi- cals from this process might require regeneration, on-site management, or disposal by the DAC operator or at sizable tolling operations (where third-party contractors process or treat the spent materials and then return the restored chemicals to the customer).130 Other NET methods may generate large amounts of materials that would qualify as solid or hazardous wastes because they are placed onto the ground in a manner that constitutes disposal (e.g., dispersal of milled olivine over large land surface areas to promote accelerated weathering). As a result, some NET processes will almost certainly generate air and water emissions as well as solid or hazardous wastes that will require environ- mental permitting or authorization. These challenges, however, are not qualitatively differ- ent than the permitting and environmental management requirements for any large industrial operation with signif- icant emissions or discharges (although they likely would ultimately involve much vaster quantities of CO2 than amounts generated even by large industrial operations). Given that some centralized NET operations may generate a large quantity of wastes or emissions, they may face sub- 129. Even if stored CO2 did not trigger federal hazardous waste requirements, states may impose their own (and more stringent) tank storage require- ments. In addition, RCRA Subtitle D also provides the federal government with authority to regulate certain nonhazardous solid wastes as “special wastes” upon a specific finding by EPA. 79 Fed. Reg. at 354-56 (discussing regulatory consequences under RCRA of declaring sequestered CO2 to be a discarded “solid waste” instead of a usable or stored product or resource). 130. Full life-cycle assessments of DAC technologies are now beginning to take place as specific technologies begin to emerge. See, e.g., Jennifer Wilcox et al., , 12 Envtl. Res. Letters 065001, at 2 (2017) (discussing life-cycle analysis of DAC and enhanced oil recovery options, primarily from energy inputs and offsetting CO2 process emissions), available at https://doi.org/10.1088/1748-9326/ aa6de5. A tolling operation is a commercial transaction where a customer con- veys a batch of materials or product to a contractor who processes those materials and then returns the finished product to the customer. Typically, a tolling operator never acquires any ownership interest in the processes materials, and the operator also assumes responsibility for any wastes or en- vironmental consequences of the tolling operation. If the customer exercises broad oversight and control over the tolling operation, however, the cus- tomer may incur liability for environmental regulatory violations or cleanup obligations. See, e.g., United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1381-82, 19 ELR 21038 (8th Cir. 1989) (discussing tolling opera- tions and their potential basis for liability under CERCLA). stantial delays and permitting requirements that smaller or modular operations would not incur. These permitting requirements may discourage potentially larger centralized and more efficient NET systems and technologies.131 IV. New Public Law Approaches to Expedite Deployment of NETs for Deep Decarbonization132 As shown by the prior discussion, large-scale deployment of NETs at levels that could appreciably alter the global ambient atmosphere within a time frame contemplated by the Paris Agreement would need to navigate several legal hurdles and overcome initial economic and policy disin- centives. Some possible policy options that might make NETs more feasible as an option to aid decarbonization efforts in the United States could include the strategies out- lined in this part. . As noted earlier, current U.S. federal environmental laws and policies do not explicitly endorse or promote the devel- opment and deployment of NETs. The federal government should provide an explicit preference for research, devel- opment, and implementation of NETs as appropriate in conjunction with other decarbonization strategies. This direction could take place either through congressional directives in statutory language, appropriations legislation and oversight exchanges, or through federal agency rule- making or regulatory guidance to provide a coordinated framework for NET development.133 This congressional directive or regulatory framework should also identify the data needed for the federal and state governments to adequately supervise NET research and development, and outline the relevant existing statutory authorities available to obtain that information. . While some researchers have begun to explore the foundational con- cepts and economics of NETs, the United States has not provided large-scale funding of NET research or tests. In part, the lack of public support may arise from persistent objections and concerns about the climate engineering concept in general (including SRM). Critics contend that 131. See discussion notes 138-39 (potential standardized permitting or programmatic review approaches to streamline environmental approval of DAC technologies). 132. Given the early stage of DAC development, most of the work has occurred in research settings or early startup demonstration projects. As a result, al- most all of the governance discussions to date have focused on public law or regulatory approaches. Private governance approaches or consensual codes of conduct, however, may play a growing and significant role in the future, especially within the research community. See Burger & Gundlach, supra note 16. 133. For an example of a coordinated federal policy to govern an emerging technology, see U.S. EPA, Modernizing the Regulatory System for Biotechnology Products: Final Version of the 2017 Update to the Coordinated Framework for the Regulation of Biotechnology (2017), available at https://www.epa.gov/sites/production/files/2017-01/ documents/2017_coordinated_framework_update.pdf.PDF Image | NET Legal Pathways
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