On December 28, 2023, the United States Environmental Protection Agency (“EPA”) signed a final rule delegating primacy over the issuance and enforcement of permits for Class VI Underground Injection Control (“UIC”) wells under the Safe Drinking Water Act to the Louisiana Department of Natural Resources (“LDNR”).[1] This decision came after a lengthy review process lasting over two years and involving over 45,000 public comments. The EPA determined that Louisiana’s UIC Class VI rules enacted under the Louisiana Geologic Sequestration of Carbon Dioxide Act (La. R.S. 30:1101-1112) and Statewide Order 29-N-6 (LAC 43:XVII.Ch. 36) were as stringent as the federal rules in 40 C.F.R. Parts 144 and 146 and that Louisiana has sufficient resources to issue permits, track compliance, and enforce its program.[2] However, the EPA retains the ability to oversee the Louisiana program through sharing of permitting information, joint inspections and annual performance reviews of the state program. The EPA also retains authority to issue UIC Class VI permits on Indian lands within Louisiana. The final delegation will become effective thirty days after publication in the Federal Register.

LDNR’s UIC Class VI program includes provisions that are more stringent than those required under the EPA rules. LDNR has created a website for the Class VI program that notes the following areas where the state program is more stringent than the federal program for these wells:[3]

  • Louisiana will not grant waivers to injection depth requirements;
  • Louisiana prohibits sequestration of CO2 in salt caverns;
  • Louisiana will not issue area permits for multiple wells at once, requiring each individual well to be reviewed and permitted on its own; and
  • Louisiana requires additional measures for monitoring systems and operating requirements.

In addition, LDNR requires applicants to submit an Environmental Analysis along with their UIC Class VI permit application. The Environmental Analysis must address the following five questions as mandated by jurisprudence interpreting the Louisiana Constitution:

(1) Have the potential and real adverse environmental effects of the proposed permit activity been avoided to the maximum extent possible?

(2) Does a cost-benefit analysis of the environmental impact costs versus the social and economic benefits of the proposed activities demonstrate that the latter outweighs the former?

(3) Are there alternative activities which would offer more protection to the environment than the proposed activity without unduly curtailing non-environmental benefits?

(4) Are there alternative sites which would offer more protection to the environment than the proposed site without unduly curtailing non-environmental benefits?

(5) Are there mitigating measures which would offer more protection to the environment than the proposed activity without unduly curtailing non-environmental benefits?

Appendix II of the LDNR primacy request package to EPA indicated that an applicant’s answers to these “must provide adequate detail with sufficient justification and supporting data.” Although this was already required of LDNR through Louisiana constitutional provisions, and was committed to by LDNR in its UIC Class VI program submittal to EPA, the requirement was made explicit through an amendment to La. R.S. 30:1104.1 via Act 378 of the 2023 Louisiana Legislature.

The delegation of primacy over the Class VI UIC program to LDNR is contingent on LDNR’s compliance with the Memorandum of Agreement (“MOA”) entered between LDNR and EPA in May 2023. The MOA requires LDNR to implement an inclusive public participation process, incorporate environmental justice and civil rights considerations in the permit review processes, to undertake sufficient enforcement, and to incorporate environmental mitigation measures where warranted. As an example of the environmental justice (“EJ”) considerations, the EPA noted that LDNR committed in the MOA addendum to use the EPA EJ Screen process to identify potential environmental justice communities and to thoroughly examine the potential risks of each proposed Class VI well to minority and low-income populations where such are identified. Under the MOA, LDNR will also use the results of the environmental justice review to determine if an enhanced public comment period will be required.

It is widely believed by federal and state regulators that Class VI UIC primacy delegations such as this to Louisiana are necessary to timely implement carbon capture and sequestration projects. The EPA has issued just two final UIC Class VI permits in the last several years. Pending applications for UIC Class VI permits at twenty-two locations in Louisiana will be transferred to LDNR to complete the permitting process once the delegation becomes effective.[4] Given LDNR’s geologic expertise and its decades of primacy over the programs for Classes I through V wells, this delegation will significantly advance federal and state efforts to combat climate change. In the Preamble to the final delegation, the EPA stated:[5]

The LDNR UIC program is comprised of staff with expertise in the variety of technical specialties needed to issue and oversee Class VI permits, including site characterization, modeling, well construction and testing, and finance. LDNR’s staff competency is demonstrated via annual reviews with the EPA in accordance with the state’s minimum qualifications for education and professional experience, and requirements to be a licensed professional engineer (P.E.) or geoscientist (or work under one) in good standing with either the Louisiana Professional Engineering and Land Surveying Board or Louisiana Board of Professional Geoscientists. The EPA understands that the state of Louisiana has a plan in place to expand its program to further support Class VI activities within the state by hiring seven additional staff and third-party contractors for modeling, risk and environmental justice analysis.

Development and deployment of carbon capture and sequestration at scale is a necessary component to achieving the United States’ goals on greenhouse gas reduction. Granting primacy to LDNR, with oversight by the EPA, substantially furthers these goals.

[1] The pre-publication rule is available at State of Louisiana Underground Injection Program; Class VI Primacy (epa.gov).

[2] EPA noted in its final decision to delegate the program that LDNR has had delegation over the issuance of Class I, II, III, IV, and V wells since 1982.

[3] See: Department of Natural Resources | State of Louisiana.

[4] See: Current Class VI Projects under Review at EPA | US EPA.

[5] State of Louisiana Underground Injection Program; Class VI Primacy (epa.gov), at p. 23.