Infrastructure law amends OCSLA for offshore CSS
Carbon sequestration at sea on the outer continental shelf (“OCS”) could be on the horizon. The Infrastructure Investment and Jobs Act, enacted by President Biden on November 15, 2021, amends the Outer Continental Shelf Lands Act (“OCSLA”) to allow this and directs the Ministry to Interior to establish an authorization framework within one year of President Biden signing. Companies interested in offshore geological sequestration should closely monitor the agency’s progress.
The Infrastructure Act amends the OCSLA by adding key definitions for carbon capture and sequestration. First, the Infrastructure Act adds a definition of “carbon dioxide stream”, defined to mean “carbon dioxide that has been captured and consists predominantly of carbon dioxide”. HR 3684 § 40307 (a) (4). The carbon dioxide stream can include “incidental associated substances” — residues included in the stream that are derived either from the source of the carbon dioxide stream or from the capture process itself. Identifier. The carbon dioxide stream can also include substances that have been “added to the stream for the purpose of enabling or improving the injection process”. HR 3684 § 40307 (a) (4). The Infrastructure Act specifically excludes all waste added to the carbon dioxide stream for disposal from the legal definition of “carbon dioxide stream”. Username.
The Infrastructure Act also establishes a definition of “carbon sequestration,” which means “the act of storing carbon dioxide that has been removed from the atmosphere or captured by physical, chemical or biological processes that may prevent carbon dioxide reaching the atmosphere. ” Identifier.
Leases, easements and rights of way
The Infrastructure Act amends the lease provisions of the OCSLA to allow Interior to grant leases, easements and rights of way on the OCS for the purpose of carbon sequestration. See 43 USC § 1337 (p) (1). Such permits may be issued for activities which “provide, support or are directly related to the injection of a flow of carbon dioxide into underwater geological formations for the purpose of long-term carbon sequestration”. HR 3684 § 40307 (b)
Interaction with the Ocean Dumping Act
Title I of the Marine Protection, Research and Sanctuaries Act, often referred to as the “Ocean Dumping Act”, prohibits the dumping of “any material” into ocean waters. See 33 USC § 1411. The term “Material” is broadly defined in the Ocean Dumping Act to mean “material of any kind or description” with the exception of wastewater from marine sanitation systems. Identifier. § 1402 (c).
The infrastructure law specifically excludes “the flow of carbon dioxide[s] injected for carbon sequestration purposes ”of the definition of“ material ”in the Ocean Dumping Act. HR 3684 § 40307 (c). Therefore, if the flow of carbon dioxide and the act of sequestration meet statutory definitions set out in the Infrastructure Act, sequestration will be excluded from the definition of “material” in the Ocean Dumping Act. This change is also important for offshore CCS in state waters, as it removes any uncertainty about the enforceability of the Ocean Dumping Act.
The Home Office will need to start working quickly if it is to establish a licensing framework for the offshore sequestration of carbon captured during the one-year period after the signing of the infrastructure law. Interior will benefit from insight from companies that have experience in carbon capture and sequestration and offshore operations, and even more so from hearing from companies that do (or are interested in doing) both. It will be a big push domestically, but with the prospect of taking CCS significantly forward in the United States, we expect there to be great interest in moving towards the one-year deadline for regulations.