By Carlos Anchondo
July 18th, 2023
E&E DAILY | Two Texas Democrats are urging EPA to reject the state’s application to gain top regulatory oversight of carbon dioxide injection wells, pointing to a “lax attitude” toward enforcement at the Texas agency that would oversee the program.
Reps. Lloyd Doggett and Joaquin Castro called on EPA to deny an application from the state Railroad Commission to secure “primacy,” or primary enforcement authority, over Class VI wells.
Those wells are used to inject CO2 into deep rock formations and are regulated through EPA’s underground injection control program.
The commission’s “lack of oversight and enforcement, unwillingness to take responsibility for legacy oil and gas wells, and disregard for historically marginalized communities raises significant reservations about its ability to oversee the Class VI program effectively and responsibly,” Doggett and Castro said in the letter, which was addressed to EPA Administrator Michael Regan.
The Texas lawmakers issued a joint press release Monday about their recent letter. The Railroad Commission, which doesn’t have authority over railroads in Texas, regulates the state’s oil and gas sector.
Doggett and Castro asked for Texas’ primacy application to be rejected, or at least paused, “pending the initiation and completion of a thorough investigation into the Commission’s regulatory operations for stringent adherence to the EPA’s guidance and environmental justice standards.”
EPA describes environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income,” as it relates to the development and enforcement of environmental laws and regulations.
The agency regulates and issues permits for Class VI wells in all U.S. states and territories, with the exception of Wyoming and North Dakota. The agency granted the states primacy in 2020 and 2018, respectively. This year, EPA released a proposed rule that would make Louisiana the third state to gain primary enforcement authority over Class VI wells.
EPA spokesperson Joseph Robledo said earlier this month that the comment period had closed on the proposed rule regarding Louisiana’s bid for primacy. On Monday, EPA didn’t provide a comment to E&E News on the letter about Texas from Doggett and Castro.
The federal agency has faced scrutiny over how long it takes to issue a Class VI permit, which carbon capture advocates say is a problem if the industry is going to scale up sufficiently. Earlier this year, Khanya Brann, EPA’s deputy press secretary, said the agency works to make a permit determination within 24 months.
Texas’ Class VI primacy application with EPA is still listed in the “pre-application activities” phase, according to EPA’s website. However, a June document from the Railroad Commission said Texas submitted its official primacy application to EPA on Dec. 19.
The new four-page letter puts Doggett and Castro at odds with some other Texas lawmakers in Congress, including Sen. John Cornyn (R-Texas).
In an email, Cornyn spokesperson Audrey Cook said the senator supports states receiving primacy to “carry out various environmental programs.” She added that “state and local officials are in a better position than the federal government to know what their communities need.”
On Monday, a spokesperson for the Railroad Commission said the agency’s top priority is “ensuring the safety and security of Texans and the environment” while providing a predictable regulatory environment.
“Also, in reference to orphaned well plugging the letter talked of, the state Legislature sets targets for the number of wells to be plugged annually, and the agency has exceeded the annual targets for six straight years and counting — yet another example of how the [Railroad Commission’s] expertise and work helps protect residents and the environment,” said Patty Ramon, a commission spokesperson, in a statement Monday.
Although EPA has only issued permits for two Class VI wells so far, the agency’s website shows more than 100 applications listed as “pending” for their current status.
Currently, the Railroad Commission is taking steps to amend state code to ensure that Texas’ regulations for CO2 sequestration are as stringent as EPA’s requirements. The Texas agency is accepting comments on the proposed amendments, according to documents on its website.
The comment period ends on July 31, the Railroad Commission’s website says.
Officials from the Railroad Commission pushed back on the letter from Doggett and Castro.
“If Representatives Castro & Doggett truly support efforts to reduce carbon in our atmosphere through underground sequestration, they should reconsider their seemingly reflexive opposition to the Railroad Commission’s regulatory oversight of this important issue,” said Commissioner Jim Wright in a Monday statement.
Ramon, the commission spokesperson, said the agency is in the best position to “evaluate the specifics related to well depth, geology and hydrogeology posed by a Class VI well and assist in reducing carbon dioxide emission” because of the range of geologic settings where CO2 storage would be applied.
In their letter, Doggett and Castro said carbon capture projects could be placed in already overburdened communities, pointing to an Occidental Petroleum Corp. proposal in the Corpus Christi, Texas, area along the Gulf of Mexico as an example.
“Current proposed sites, like Occidental’s proposed carbon capture hub in the Gulf [region], are in communities of color that already face severe levels of pollution — up to twice as much pollution compared to communities of white residents,” the lawmakers said in their letter.
William Fitzgerald, an Occidental spokesperson, declined to comment on the letter but said that “environmental justice is a key consideration in the development of our projects.”
Doggett and Castro, who represent swaths of Austin and San Antonio, respectively, also asked EPA to conduct a “thorough investigation” of the commission’s permitting of Class II wells, a well type used to inject fluids — including brine, fresh water and CO2 — linked with oil and natural gas production.
Charles McConnell, a former assistant secretary for fossil energy at the Department of Energy under former President Barack Obama, said the letter raises some valid concerns. But he said states looking to advance carbon capture on a commercial scale “must prioritize” primacy.
McConnell, who also leads a carbon management center at the University of Houston, said the commission has “extensive experience” in CO2 injection and storage, making it “well-suited to address permit requirements for CO2 storage.”
“States not prepared or capable of accepting the breadth of primacy responsibility and instead ceding that to the Federal EPA, cannot expect to lead the commercialization” of carbon capture, utilization and storage, McConnell said in an email Monday.
The head of Commission Shift, a nonprofit group focused on bolstering oil and gas oversight in Texas, said EPA should be cautious as states apply for Class VI primacy.
EPA should reject the commission’s application “because we have not seen the Railroad Commission do a good job of monitoring and enforcing rules for Class II injection wells yet,” said Virginia Palacios, the group’s executive director.
Palacios referenced issues with unplugged wells and leaks in the Permian Basin, which includes parts of Texas and New Mexico.
“I think we need to see a robust investigation from the EPA looking at the ways that Class II wells are connecting with these unplugged oil and gas wells,” Palacios said.
This story also appears in Energywire.