REGULATING THE INEVITABLE: UNDERSTANDING THE LEGAL CONSEQUENCES OF AND PROVIDING FOR THE REGULATION OF THE GEOLOGIC SEQUESTRATION OF CARBON DIOXIDE

Abstract

To protect both the environment and the nation, a comprehensive system of regulation, composed of general federal regulation and specific state-based regulation, should be created. CCS is expected to be utilized on a large scale in the near future as a consequence of carbon emissions regulations that will soon be implemented through federal policies or through international agreement. CCS technology is approaching maturity, and it is one of the few means of reducing carbon that allows continued use of coal without major alteration to the existing infrastructure. Due to the large coal-based infrastructure in the United States, a "wedge" of mitigation that allows for the continued use of coal will likely be pushed strongly by the power industry as a practical necessity. While the wisdom of CCS may be questioned, it will be implemented in the near future in some form. Thus, it is imperative to prepare for CCS. This Note avoids the value judgments about CCS or questions about its wisdom.  Rather, this Note recognizes that CCS will be implemented and that regulation will be necessary. Because of the complexity and the potential danger of CCS, failing to establish comprehensive regulation could lead to disastrous results. This Note seeks to create a framework with a strong balance of state and federal regulation. The division of the regulation between the states and federal governments allows for the most effective means of regulation while allowing technological innovation. This Note looks at the process of CCS and the legal ramifications likely to arise from its use. The Note then argues that for the importance of implementing a regulatory scheme for CCS now, before the process becomes commonplace. That scheme should foster cooperation between the federal government and the states, building on previous federal environmental regulation but also recognizing the inherently state-based aspects of CCS. To explore CCS and the way it should be regulated, this Note first examines the science and technology involved in the process. This in-depth look at sequestration is followed by an exploration of the foreseeable legal consequences of CCS. This Note concludes with a CCS regulatory proposal with a combination of federal oversight and strong state-based programs.