Summary/Abstract
To achieve energy sustainability and the federal government’s goal of a net-zero economy to combat climate change, investment in carbon capture and storage (CCS) facilities is crucial. The primary incentive available is the 45Q federal tax credit; however, this tax credit is a double-edged sword because if any carbon dioxide (CO2) leakage occurs, the taxpayer must return any benefit received from the tax credit. Additionally, the Environmental Protection Agency (EPA) implements high faring penalties with the purpose of regulating faring to reduce emissions. However, the Texas Railroad Commission (RRC) grants most permits for operators to fare in oil and gas operations, directly conflicting with energy sustainability objectives and leading to increased emissions. Thus, the 45Q tax credit and flaring penalties result in a broken carrot and stick system because the leniency of the RRC towards flaring disincentivizes investors to invest in carbon capture technologies. This discourages operators because not only are flaring penalties lightly enforced, but there are also high costs and potential liabilities that are associated with carbon capture and sequestration.
This Comment discusses the existing incentives available to operators of CCS facilities in Texas and addresses how these current incentives are insufficient to encourage investment when considering the challenges, costs, and potential liabilities associated with carbon capture technology. The current laws in Texas indefinitely place liability on the operator; however,
these laws disincentivize operators to invest in carbon facilities especially when considering the leniency of the RRC towards flaring. Thus, Texas should adopt legislation that shifts long-term liability from operators of onshore carbon storage facilities to the state. Shifting liability will encourage investment in carbon sequestration in Texas and remedy the current inadequate imbalance existing between the current incentives available and costs and potential liabilities that operators of carbon storage facilities may face. To formulate a clear legislative framework, this Comment also explores other issues that are directly related to carbon storage such as primacy and pore space ownership.