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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 10430 ENVIRONMENTAL LAW REPORTER 5-2018 ably exercise this condemnation authority initially, and extend this power to private parties only with great cau- tion.141 And most importantly, the daunting amounts of land demanded by some NET approaches (in particular BECCS) would make it difficult to acquire the required space through heavy reliance on condemnation powers without triggering a political and financial backlash. Integration with state renewable energy incentives and . A majority of states have achieved nota- ble success in encouraging the development of renewable energy sources through promulgation of renewable port- folio standards (RPS) and renewable energy standards. While no state has yet explored the use of RPS to spur the development of NETs, the designation of carbon removal technologies as an accepted method to attain RPS targets would provide a substantial incentive for the development, commercialization, and deployment of NETs.142 Damages and liability. Congress has adopted a broad range of tactics to keep liability and damages concerns from stifling desirable emerging technologies. Many of these strategies could readily apply to NETs. For example, the United States has shielded the domes- tic nuclear energy industry through the adoption of liabil- ity caps that prevent a nuclear plant operator’s liability for an incident from exceeding statutorily designated caps. These caps, which are imposed under the Price-Anderson Act, also limit the judicial fora that can hear damages claims and preclude certain state law tort actions.143 A few other federal statutes have included liability limitations or restrictions on judicial review as a means to promote the initial growth of important technologies.144 Congress or federal agencies could explore the possibility of offer- ing certain liability protections for NET operators that meet size, operational, and safety requirements. To some extent, EPA has already explored some of these strategies in a related context by providing conditional waivers from hazardous waste regulations and CERCLA liability for persons who capture and sequester CO2 through injection 141. Richard A. Epstein, Kelo v. City of New London Ten Years Later, Nat’l Rev., June 23, 2015 (recounting strong reaction to the Supreme Court deci- sion allowing condemnation and acquisition of private property for a public real estate development project that provided only indirect benefits to the public), http://www.nationalreview.com/article/420144/kelo-v-city-new- london-ten-years-later-richard-epstein; Ilya Somin, The Grasping Hand: KELO V. CITY OF NEW LONDON and the Limits of Eminent Domain (2015). 142. Anthony Chavez, - , 43 Wm. & Mary Envtl. L. & Pol’y Rev. (forthcoming 2019). 143. 42 U.S.C. §§2210 et seq. See also David A. Repka & Tyson R. Smith, Deep , 48 ELR 10244 (Mar. 2018). 144. See, e.g., 33 U.S.C. §2704 (limitations on liability under the Oil Pollution Act for damages arising from spills of petroleum into navigable waters); David A. Dana, Northwestern University School of Law, Faculty Working Paper No. 194, When Less Liability May Mean More Pre- caution: The Case of Nanotechnology 29-32 (2009) (analyzing pro- posals to limit liability for damages arising from nanoscale materials in ex- change for instituting a broad testing regime), http://scholarlycommons. law.northwestern.edu/facultyworkingpapers/194; Lin, supra note 135, at 95-96, 100-01 (role of tort liability and insurance as regulatory backstops for development of nanoscale materials). wells into subsurface strata.145 Congress and EPA should craft a similar combination of legislative and regulatory options to allow NET research and limited deployment to occur without significant delays from permitting disputes or environmental impact reviews. Incentives. Given NETs’ nascent state, current envi- ronmental regulations unsurprisingly do not provide any express regulatory or financial incentives for persons to undertake NET research, testing, or deployment. As a result, any comprehensive and rational system to spur NET investigations will likely require legislative or regula- tory action. Within that framework, the federal (and state) government can offer several possible benefits and rewards. Drawing on prior federal efforts to incentivize research or early deployment of emerging technologies, some effec- tive and common tools would include the congressional provision of tax credits, favorable depreciation, and federal loan guarantees to investors in desirable new technolo- gies.146 As noted earlier, Congress recently took the impor- tant first step of authorizing the extension of tax credits to certain qualifying DAC operations.147 In addition, outright research grants from EPA, the U.S. Department of Energy, the National Science Foundation, or other federal agen- cies could be made available to spark research that offers limited short-term financial profit but promises immense long-term public benefits.148 But the most powerful concept that could accelerate private-sector NET research and deployment would be the imposition of a carbon tax or other pricing mechanism that would expressly allow NET operators to obtain a finan- cial return on the CO2 they capture from the atmosphere. This approach would allow entrepreneurs and investors to develop NETs without mandatory governmental controls, approvals, or disbursements, and markets could theoreti- cally help allocate resources in an efficient fashion to the most effective methods and technologies. The use of NET projects to generate tradable carbon credits, however, would likely prove controversial in light of concerns over verify- ing the validity of the traded credits and unexpected side effects created by prior CO2 trading systems.149 In addition, a large number of credits generated by commercial NET 145. See discussion supra notes 121-29. 146. This strategy, however, has proven controversial when federal investments, loans, or tax credits go to ventures that ultimately fail or go bankrupt. See, e.g., Eric Lipton & John M. Broder, Missed Signs, N.Y. Times, Sept. 23, 2011, at A1. 147. See discussion supra notes 25-26. 148. See, e.g., John M. Golden & Hannah J. Wiseman, The Fracking Revolution: , 64 Emory L.J. 955, 983-99 (2015) (reviewing role of government support in development of hydraulic fracturing technology). See also Loren Steffy, How Much Did the Feds Re- , Forbes, Oct. 31, 2013, https://www.forbes.com/ sites/lorensteffy/2013/10/31/how-much-did-the-feds-really-help-with- fracking/#24fcd1c13edf; Michael Shellenberger & Ted Nordhaus, , Wash. Post, Dec. 16, 2011 (recounting federal support for early research in the natural gas potential of shale formations and innovative techniques to cost effectively extract hydrocarbons from them), https://www.washingtonpost.com/opinions/a-boom-in-shale-gas-credit- the-feds/2011/12/07/gIQAecFIzO_story.html?utm_term=.2d79e64926c4. 149. Keith Bradsher, Gases, N.Y. Times, Dec. 21, 2006, at A1.PDF Image | NET Legal Pathways
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