Can local governments regulate carbon capture projects? | Environment

A federal judge’s decision to allow a global gas supply company to temporarily continue drilling injection wells in Lake Maurepas has begged the question from some local officials: What say do local governments have over whether companies can build carbon sequestration sites in their own backyards?

Carbon capture and sequestration technology compresses the carbon output from factories and then stores it deep underground rather than releasing it into the atmosphere. It’s supported by many government officials and industry experts as a vital means of fighting climate change.

One of these projects coming to Louisiana is Air Products’ $4.5-billion hydrogen manufacturing plant, which is slated to open in Ascension Parish by 2026 and store carbon underneath Lake Maurepas. But for the better part of 2022, the project has generated opposition from residents and environmental activists who fear possible harm to themselves or local wildlife should the company encroach upon the lake.

The company signed its operating agreement to build in Lake Maurepas, a state-owned property, with the Louisiana Department of Natural Resources’ Mineral and Energy Board in October 2021, about seven weeks after Hurricane Ida devastated much of southeast Louisiana.

An Air Products spokesman said Friday that local parishes will benefit economically through property taxes from the pipeline and injection wells, along with sales tax revenue from purchases of construction materials. The project is projected to create about 170 permanent jobs.

But many residents in Livingston, Tangipahoa and other surrounding parishes have argued the timing prevented them from airing concerns for the project before the state approved it, leaving them to scrounge for retroactive solutions to keep the company out.

One such action was Livingston Parish’s year-long moratorium passed in September on seismic testing and Class V test wells — injection wells used to pump non-hazardous, non-carbon substances underground — in hopes of slowing down Air Products and another upcoming carbon capture operation by Oxy Low Carbon Ventures near Holden in Livingston Parish.

Livingston’s parish attorney had advised the parish council against a moratorium prior to its passage, warning it would overstep their legal jurisdiction. Nevertheless, the council adopted the moratorium.

“My thought is that one of local government’s main responsibilities is land management, management of resources and to protect the people — to offer them the best quality of life that life has to offer,” Shane Mack, a Livingston councilman who spearheaded the moratorium, said in an interview earlier this month. “I felt like local government should have the authority and right to write some legislation to protect the people and protect the lake.”

In October, Air Products sued the parish government in federal court, arguing the parish surpassed its authority by defying state agencies that already approved permits.

“This ordinance, if allowed to take effect, will directly contravene the authority of the Louisiana Legislature, the Louisiana Department of Wildlife and Fisheries, the Louisiana State Mineral and Energy Board, the U.S Army Corps of Engineers, and the U.S. Environmental Protection Agency, among others,” the Air Products lawsuit states. “It will also introduce uncertainty into a tightly structured and coordinated state and federal regulatory scheme.”

Air Products must conduct seismic tests and drill two Class V test wells in the lake, one with Livingston Parish’s bounds and one in St. John the Baptist’s, in order to get the necessary permits from the U.S. Environmental Protection Agency to build its carbon capture and sequestration site.

Judge Shelly Dick of the Middle District Court of Louisiana granted a preliminary injunction on the moratorium Dec. 26, meaning the company can proceed with its plans before going to trial. Preliminary injunctions are typically granted in situations where the lawsuit is likely to succeed.

And with the trial now set for April 8, 2024, Air Products officials said they plan to be done with their seismic testing and injection well work before trial’s completion, rendering the moratorium useless for halting this particular plan.

“I kind of feel like this whole process is being rushed through,” Mack said. “I think 12 months was not too long of a period to allow local government to really do some good research and put some things in place to protect the people.”

Officials in Tangipahoa Parish, on the eastern border with Livingston, said they haven’t found any substantive action to take on the matter either, despite residents showing up in droves to meetings to protest carbon sequestration in Lake Maurepas.

Councilwoman Kim Landry Coates introduced a proposed ordinance last month that would give residents the right to sue others for damages from adverse environmental effects at Lake Maurepas, but it was sent back to committee and ultimately tabled last Wednesday because it surpassed the legal scope of the council.

Coates said the Tangipahoa Council has been advised against passing any moratoriums because they’d have the same outcome as Livingston’s; her proposed ordinance, she said, was an attempt at protecting Lake Maurepas only in the event damage actually occurs.

“I’m just trying to do something for the people, and not just for Air Products but anything else that could harm the lake,” Coates said. “This lake has taken a beating years after years after years.”

Coates said parish councils seem to have no power to object to carbon capture projects, no matter how much their constituents protest them.

“We were elected to help protect the health, safety and welfare of our people, but yet we can’t do it. It’s frustrating,” Coates said.

State Rep. William “Bill” Wheat, R-Ponchatoula, said he plans to bring two bills to the Legislature this April regarding carbon capture and sequestration.

In one bill, Wheat said, he proposes a state moratorium on Class VI injection storage wells in Lake Maurepas.

“We’re not painting a broad brush to stop carbon capture in the state of Louisiana with my legislation,” Wheat said. “We just think that Lake Maurepas is too sensitive of an area with the fish and wildlife habitats for it to happen there.”

In his second bill, Wheat seeks to require that all companies looking to build Class VI wells submit an environmental impact statement, a detailed legal document outlining how a project will impact the surrounding environment.

Air Products has previously stated it plans to submit an environmental impact statement to the Army Corps of Engineers.

State Rep. Sherman Mack, a Republican from Albany and brother to Livingston Parish Councilman Shane Mack, said he plans to bring his own proposed legislation with a wider scope. He intends to ask the Legislature to redirect all carbon capture and sequestration projects to the Gulf of Mexico and to initiate a parish-by-parish vote to let residents decide if they want to allow businesses to sequester carbon underground in their parishes, similar to how parish residents voted to allow sports betting in 2020.

“I understand these companies want to utilize tax credits, but at the end of the day it’s really about dollars and cents,” Mack said. “But for me, I have to look out for the constituents I represent. Sometimes we have to look beyond money and just do the right thing. I really don’t think that this project in Lake Maurepas or Holden is the right thing to do.”