Under the Sea: Congress Amends OCSLA to Provide for Offshore CCS

Offshore carbon sequestration on the Outer Continental Shelf (“OCS”) might be simply over the horizon. The Infrastructure Funding and Jobs Act (the “Infrastructure Act”), signed into regulation by President Biden on November 15, 2021, amends the Outer Continental Shelf Lands Act (“OCSLA”) to enable for it and directs the Division of the Inside to set up a allowing framework inside a yr of President Biden’s signature. Corporations occupied with offshore geologic sequestration ought to observe the company’s progress intently.

Definitions

The Infrastructure Act amends OCSLA by including key definitions for carbon seize and sequestration. First, the Infrastructure Act provides a definition of “Carbon Dioxide Stream,” outlined to imply “carbon dioxide that has been captured and consists overwhelmingly of carbon dioxide.” H.R. 3684 § 40307(a)(4). The carbon dioxide stream might embrace “incidental associated substances”—residuals included in the stream which might be derived both from the supply of the carbon dioxide stream or the seize course of itself. Id. The carbon dioxide stream may embrace substances which have been “added to the stream for the purpose of enabling or improving the injection process.” H.R. 3684 § 40307(a)(4). The Infrastructure Act particularly excludes any wastes added to the carbon dioxide stream for disposal from the statutory definition of “carbon dioxide stream.” Id.

The Infrastructure Act additionally establishes a definition of “carbon sequestration,” which suggests “the act of storing carbon dioxide that has been removed from the atmosphere or captured through physical, chemical, or biological processes that can prevent the carbon dioxide from reaching the atmosphere.” Id.

Leasing, Easements, and Rights-of-Manner

The Infrastructure Act amends OCSLA’s leasing provisions to authorize Inside to grant leases, easements, and rights-of-way on the OCS for the function of carbon sequestration. See 43 U.S.C. § 1337(p)(1). Such authorizations could also be issued for actions that “provide for, support, or are directly related to the injection of a carbon dioxide stream into sub-seabed geologic formations for the purpose of long-term carbon sequestration.” H.R. 3684 § 40307(b)

Interplay with the Ocean Dumping Act

Title I of the Marine Safety, Analysis, and Sanctuaries Act, usually referred to as the “Ocean Dumping Act,” prohibits the dumping of “any material” in ocean waters. See 33 U.S.C. § 1411. “Material” is outlined broadly in the Ocean Dumping Act to imply “matter of any kind or description” with the exception of sewage from marine sanitation gadgets. Id. § 1402(c).

The Infrastructure Act particularly excludes “carbon dioxide stream[s] injected for the purpose of carbon sequestration” from the Ocean Dumping Act’s definition of “material.” H.R. 3684 § 40307(c). Due to this fact, if the carbon dioxide stream and the act of sequestration meet the statutory definitions established by the Infrastructure Act, the sequestration shall be excluded from the definition of “material” in the Ocean Dumping Act. This transformation can be necessary for offshore CCS in state waters, because it removes any uncertainty about the applicability of the Ocean Dumping Act. 

Subsequent Steps

The Inside Division will want to start work rapidly whether it is to set up a allowing framework for the offshore sequestration of captured carbon inside the Infrastructure Act’s one yr interval after signing.  Inside will profit from the perception of corporations which have expertise with carbon seize and sequestration operations and offshore operations, and all the higher to hear from corporations that do (or are occupied with doing) each.  This shall be a heavy elevate for Inside—however with the prospect of considerably advancing CCS in the United States we count on there to be nice curiosity in a push in the direction of the 1-year deadline for rules.

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