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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 10431 ventures might overwhelm other policy, ethical, and social goals.150 The verification of CO2 captured by certain NET methods (such as OIF) may also be difficult, and the value of such credits may fail to reflect the corollary environmen- tal harms created by the NET process itself. In the short term, EPA and state environmental agencies could promote the investigation and deployment of NETs through incorporating them into GHG control permit requirements and emission control standards. These strate- gies might include, for example, the use of CO2 captured through DAC as a tradable offset for compliance with state emission limits from existing fossil-fueled power plants or from future industrial sectors that may be subject to exist- ing source performance standards.151 EPA or delegated states (states with authority to run their own regulatory programs under the CAA) could also consider the use of NET removal of CO2 as an alternative control strategy to consider during their selections of best available control technologies (BACTs) for PSD permits to control emis- sions of other regulated pollutants.152 Given the quick dispersion of CO2 emissions on a national (and global) basis, EPA or a delegated state might also make the defensible decision to let a facility offset its CO2 emissions from one of its facilities through that opera- tor’s use of NETs at a different location within the United States. The inclusion of such offsets or netting, however, might provoke some public controversy and opposition, and as a result affected persons could perhaps challenge such NET mandates through administrative petitions or judicial action involving the underlying permit (or non- major source determination).153 150. Albert C. Lin, Geoengineering, in Global Climate Change and U.S. Law 724 (Michael B. Gerrard & Jody Freeman eds., American Bar Association 2d ed. 2014). 151. While the federal Clean Power Plan and federal CO2 emission limits on fossil-fueled electrical generation facilities might have provided a fertile basis to explore permitting requirements that incorporated offsets from DAC or other NETs, the federal government’s recent moves to halt efforts to permit GHG emissions under the federal CAA’s PSD program and its new source performance standards likely foreclose that avenue for the foreseeable fu- ture. See discussion supra note 39, Exec. Order No. 13783, sec. 4(b) (direct- ing review and, if warranted, withdrawal of Clean Power Plan regulations to restrict GHG emissions from existing and new fossil-fueled power plants under §§111(b) and 111(d) of the federal CAA). 152. DAC removal might also play a role in selection of lowest achievable emis- sion rate (LAER) technologies for sources located in areas that do not meet NAAQS for certain criteria pollutants. While EPA has not promulgated NAAQS for CO2 that would support the designation of nonattainment ar- eas or selection of LAER for CO2, EPA or delegated state agencies could choose a LAER technology to control that nonattained criteria pollutant while also offering additional desirable reductions in CO2 as well. As noted earlier, the Supreme Court in upheld the ability of EPA (and, presumably, a state agency with delegated authority) to select BACT standards to control regulated pollutants that also limit CO2 and other GHGs as co-pollutants. See discus- sion supra note 98, Utility Air Regulatory Group v. Environmental Prot. Agency, 134 S. Ct. 2427, 2447-49, 44 ELR 20132 (2014) (discussion of regulation of “BACT anyway” sources). 153. While the use of netting and offsets has become an accepted facet of rou- tine PSD and NNSR permitting under the federal CAA, the concepts have sparked controversy when used as compliance mechanisms or as a mecha- nism under state law to attain GHG reduction goals. See, e.g., Adam Ash- ton, , Sacramento Bee, Jan. 24, 2017, at 1 (lawsuit challenging California’s use of a cap-and-trade system to control GHG emissions under state law), avail- Beyond these regulatory incentives and exemptions, federal and state environmental agencies could remove bar- riers to NETs on other fronts. For example, EPA and state environmental agencies could promote the reuse of cap- tured CO2 as a feedstock or commercial product by issuing guidance or a regulatory determination that CO2 captured through NETs would not constitute a pollutant under the Clean Water Act (CWA)154 or CAA or a discarded haz- ardous waste or substance under RCRA or CERCLA.155 The conditions (if any) accompanying this determination should protect the public or ecosystems from any antici- pated risks from NETs, but the Agency would need to navigate the exemption with care because non-discarded products or feedstocks typically fall outside EPA’s jurisdic- tion under RCRA and the CWA.156 The reuse of captured CO2 to generate carbon-based fuels for transportation or energy production could pose extremely difficult regula- tory concerns157 and arguably would not promote the even- tual ultimate goal of reducing CO2 accumulations in the ambient atmosphere (unless they displace fossil fuels that would otherwise be burned). Last, federal, state, local, and private efforts to use NETs to enhance the deep decarbonization of the U.S. economy will likely also have to examine issues outside strictly legal or policy concerns. For example, NETs may raise difficult issues related to the social benefits and costs that their broad implementation may impose. If NETs require sig- nificant use of lands, the placement and operation of their facilities may face the same environmental justice scrutiny that other industrial operations may trigger (especially if the NET facilities are located in environmental justice communities or Native American tribal territory). The allo- cation of any credits or other financial benefits designed to spur NET research and development, like any trading system that relies on an initial allocation of tradable cred- its, may create large transfers of wealth and expose certain communities to greater risks or benefits.158 able at http://www.sacbee.com/news/politics-government/capitol-alert/ar- ticle128494604.html. 154. 33 U.S.C. §§1251-1387. 155. For example, some proposals for DAC would use the captured CO2 as a feedstock to manufacture hydrocarbon fuels. This type of reuse of captured CO2, however, might be classified as a form of discarding through recycling for energy recovery that could lead to its classification as a solid waste under RCRA regulations. 40 C.F.R. §241.2(c)(2)(i)(B) (materials are “solid waste” if they are recycled by being “used to produce a fuel or are otherwise con- tained in fuels (in which cases the fuel itself remains a solid waste)”). The secondary use of solid wastes to manufacture fuels or to burn for energy recovery, however, is an extremely complex area of regulation under federal and state hazardous waste laws. See, e.g., 40 C.F.R. §261.38 (comparable fuels exclusions), pt. 266 subpt. H (regulations for boiler and industrial furnaces that burn secondary materials for energy recovery). 156. See, e.g., American Mining Cong. v. Environmental Prot. Agency, 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987) (certain secondary materials reused in the primary mining production process are not “discarded,” and therefore are not “solid wastes” that EPA can regulate under RCRA); Hester, supra note 46, at 877 (jurisdictional issues regarding ability of EPA to rely on the federal CAA to regulate chemicals intentionally released into the air to achieve their designated purpose). 157. See discussion supra note 155 (solid and hazardous waste regulatory require- ments triggered by burning of materials for energy recovery). 158. For example, residents near large DAC facilities may face environmental impacts from the facilities’ operations as well as the risk arising from thePDF Image | NET Legal Pathways
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