EPA Preview of New Carbon Capture and Storage Rules
[July 2008]

By Richard M. Glick

On July 15, 2008, EPA Administrator Stephen Johnson issued a notice for new regulations addressing storage of carbon dioxide (CO₂). The new rules will soon be posted on the Federal Register for public comment. The rules would establish a new class of injection well to the EPA's Underground Injection Control (UIC) program under the Safe Drinking Water Act (SDWA). The proposed rules may be found here.

Carbon capture and storage (CCS) is the technology for capturing CO₂ as it is released from coal-fired power plants, oil refineries or other large-scale sources of CO₂ emissions, and then transporting the gas for injection into a suitable underground geologic formation. The best locations are saline formations, depleted oil or gas fields, unmineable coal seams basalt, salt domes or shales. The proposed rules speak only to storage and not the capture and transportation of CO₂. Further, the rules expressly do not address regulation under the Clean Air Act, property rights or liability issues.

Supreme Court Limits Reach of Endangered Species Act [June 2007]

By Richard M. Glick and Lindsay Eyler*

In a 5-4 decision rendered June 25, 2007, the U.S. Supreme Court held that the Endangered Species Act (ESA) does not necessarily take precedence over other congressional mandates. In National Assn. of Home Builders v. Defenders of Wildlife, the Court addressed a confrontation between two powerful federal laws. The question before the Court was whether delegation of the Clean Water Act (CWA) permit program to the State of Arizona, which is mandatory under the CWA if nine statutory criteria are met, triggers the equally mandatory provisions of the ESA that federal action agencies “insure” the well being of listed species through consultation with federal fish and wildlife agencies. The Court refused to add ESA consultation as a “tenth criterion” for delegation to states under the CWA. It found reasonable an agency rule that exempts certain federal actions from the consultation requirement. The case has important implications for the Northwest in that it could directly impact ongoing litigation related to operations of the Federal Columbia River Power System (FCRPS).

Supreme Court: Voluntary Cleanups Provide a Basis for Superfund Claims [June 2007]

By Lawrence B. Burke and
Merryn B. DeBenedetti

The Supreme Court has held that a company that had cleaned up a site (which it leased from the federal government and contaminated while doing government work) may sue the government under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover costs it incurred. United States v. Atlantic Research Corp., 551 U.S. ___ (2007) (decided June 11, 2007).

The unanimous opinion in Atlantic Research answers a question that was left open in Cooper Industries, Inc. v. Aviall Services, Inc. 543 U.S. 157 (2004)—namely whether a party that: (1) is liable under CERCLA § 107; and (2) does not satisfy the requirements for bringing an action for contribution under of CERCLA § 113(f), may bring an action against another liable person for cost recovery under § 107(a).