by Mary Ellen Ternes
Reprinted from ABA with permission
NR&E Winter 2018
There is a train wreck happening in U.S. climate policy that will not be resolved soon. But perhaps carbon capture and utilization can assist while we figure this out. As a former chemical engineer from the U.S. Environmental Protection Agency’s (EPA’s) Superfund and Resource Conservation and Recovery Act incineration trenches working with industry on carbon capture, utilization, and sequestration, this author understands that the proposition of carbon capture alone can be daunting. Capture technology is robust, but scale and concentration can impact efficiencies, creating challenges. The inefficiencies seem overwhelming when the goal is permanent geologic sequestration. Carbon dioxide is a valuable industrial gas. Capturing it at great expense, only to discard it via geologic sequestration, triggering permanent sequestration obligations including monitoring and integrity verification, has always been a difficult proposition. Proposals to harvest carbon dioxide from ambient air to produce saleable products beg the question, why would we not first more broadly employ carbon capture, at the emission source, and utilize that carbon dioxide? Especially with the current federal climate policy impasse, the forces driven to fill the vacuum, including state and local action and proactive sustainable businesses, could reconsider reduce, reuse, and recycle approaches to carbon dioxide waste (and thus carbon dioxide emission) minimization. Even considering the inherent challenges of carbon capture and utilization, more carbon dioxide could be captured and utilized as a valuable industrial gas outside of government mandate.
Almost a year after the 2016 presidential election, the U.S. government’s greenhouse gas mitigation efforts are amid an abrupt about-face. Committing to reverse climate-related executive actions with Presidential Executive Order on Promoting Energy Independent and Economic Growth, No. 13783 (Mar. 28, 2017), EPA scrubbed its climate change webpages, triggering science marches, rogue EPA twitter feeds, and collaborative preservation of the scrubbed EPA climate change webpages. Jeff McMahon, Where to Find Those EPA Web Pages Scrubbed by the Trump Administration, Forbes (May 2, 2017), https://www.forbes. com/sites/jeffmcmahon/2017/05/02/where-to-find-epa-webpages-scrubbed-by-the-trump-administration/#7fa75c23bba3. Fortune 100 companies responded by committing to greenhouse gas mitigation. Ceres, Power Forward 3.0 (Apr. 25, 2017), available at https://www.ceres.org/resources/reports/ power-forward-3.
Now, with recent Hurricanes Harvey and Irma setting weather records, news sources report these record-setting storms as evidence that climate change is exacerbating storm intensity. Wayne Drash, Yes, Climate Change Made Harvey and Irma Worse, CNN (Sept. 15, 2017), www.cnn.com/2017/09/15/us/climate-change-hurricanes-harvey-and-irma/index.html.
These developments only assist existing climate change litigation, including the “managing waste by the water” citizen suit, Conservation Law Foundation v. Exxon Mobil, Case No. 1:16-cv-11950-MLW (Fed. Dist. Ct. Mass.), and the climate change public trust case, Juliana v. United States, Case No. 6:15-cv-01517-TC-AA (Fed. Dist. Ct. Oregon). And to assist with the litigation is the new causation tool, “attribution science” i.e., scientific approaches establishing elements of causation regarding aspects of weather events arising from anthropogenic climate change. See Sophie Marjanac, Lindene Patton & James Thornton, Acts of God, Human Influence and Litigation, Nat. Geoscience (Aug. 28, 217), https://www.nature.com/articles/ngeo3019.epdf . This internal U.S. conflict, in the context of existing shareholder sentiment and well-funded environmental nonprofits, points to many years of litigation ahead. In the meantime, maybe we could focus on carbon capture and utilization.
We think of carbon dioxide as a waste gas, when it is a valuable resource. Considering carbon dioxide as a valuable resource that should be conserved and recycled may sound odd. But constantly emitting carbon dioxide despite its potential uses mires us in climate change conflict, and controlling it as an air pollutant with capture and disposal through permanent geologic sequestration disregards its value. We should think about carbon dioxide as the valuable resource it is and recover, reuse, and recycle it in various industrial applications.
What do you know about carbon dioxide? You probably know that carbon dioxide is the product of carbon oxidation and that it is present in our atmosphere as a product of biologic respiration and organic and geologic oxidation and degradation. Carbon dioxide also is generated from ubiquitous man-made processes, like burning carbon-based fuels for any purpose, for electricity, warmth, or transportation, or from manufacturing processes to make fuel, concrete, and chemicals. According to the National Oceanic and Atmospheric Administration (NOAA), carbon dioxide has increased over 126 ppm since before the industrial revolution, after which it jumped from 280 parts per million (ppm) to over 406 ppm. Compare Trends in Atmospheric Carbon Dioxide, U.S. Dep’t of Commerce, NOAA, www.esrl.noaa.gov/gmd/ccgg/trends/ (last visited Nov. 30, 2017), with CO2 at NOAA’s Mauna Loa Observatory Reaches New Milestone: Tops 400 ppm, U.S. Dep’t of Commerce, NOAA, www.esrl.noaa.gov/gmd/news/7074.html (May 10, 2013).
Did you know that carbon dioxide is an important commercial gas? The properties of carbon dioxide that make it so useful include the fact that carbon dioxide is partially inert but also remains reactive. As a product of complete oxidation (i.e., combustion or burning), carbon dioxide will not burn further and is thus used to produce carbon dioxide foam for fire-fighting extinguishers and other equipment.
Yet, carbon dioxide retains its potential for reactivity with other elements or compounds and is used as a reactive raw material in producing chemical reaction feedstocks for industrial chemical manufacturing, while also neutralizing alkaline materials. Also, liquid carbon dioxide is very cold, like liquid nitrogen, and is used to freeze goods. See e.g., Carbon Dioxide (CO2) Properties, Uses, Applications, CO2 Gas and Liquid Carbon Dioxide, Univ. Indus. Gases, Inc., www.uigi.com/carbondioxide.html. Specific uses include many you may know and many you may not. Most people are familiar with carbon dioxide used in fizzy drinks and to make dry ice. Carbon dioxide also has been used for decades in oil and gas production enhanced oil recovery operations. Carbon dioxide is injected during tertiary recovery operations, following primary production and secondary recovery water flooding. In tertiary recovery operations, carbon dioxide is injected into a formation where it mixes with the oil, expanding it and moving it towards producing wells. See e.g., Denbury Resources CO2 Enhanced Oil Recovery Process, Denbury, www.youtube.com/watch?v=Kpgnr6nwlSo. In manufacturing, carbon dioxide is used for its inert properties in welding, where carbon dioxide is used as an inert gas preventing oxidation of melted metal during welding operations. Carbon dioxide in frozen form is used in sandblasting operations as dry ice in pellet form, requiring no liquid cleanup. Carbon dioxide is used for its reactive properties as an industrial feed stock for production of methanol and urea. Carbon dioxide is used for its cold material properties to quickly freeze dry food but also to freeze nonfood items during manufacturing to enhance processing efficiencies (i.e., freeze the molded gasket stiff to more easily shave off the seam). And, carbon dioxide is plant food. Carbon dioxide is injected into greenhouses to enhance crop production, injected into algae to produce bio-fuels and dietary supplements, and used in the production of cosmetics, animal and fish meal, and bio-fertilizer. See e.g., Carbon Use and Reuse, Nat’l Energy Tech Lab, www.netl.doe.gov/ research/coal/carbon-storage/research-and-development/ co2-use-reuse.
Sources of commercial carbon dioxide include natural deposits in geologic formations, such as New Mexico’s Bravo Dome or Mississippi’s Jackson Dome. Carbon dioxide also is specifically recovered from industrial processes or manufactured to meet product specifications for other industrial processes, consumer goods, and emergency response. The carbon dioxide pipeline infrastructure in the United States conveying this carbon dioxide is significant but could be more robust. White Paper from the State CO2-EOR Deployment Work Group, 21st Century Energy Infrastructure: Policy Recommendations for Development of American CO2 Pipeline Networks (Feb. 2017), www.betterenergy. org/sites/default/files/White_Paper_21st_Century_Infrastructure_CO2_Pipelines_0.pdf.
Yet, rather than consider carbon dioxide as a valuable resource, EPA’s regulatory programs generally contemplate carbon dioxide after it is discarded, and thus approach carbon dioxide as a pollutant to be controlled with carbon dioxide capture and permanent geologic sequestration, i.e., disposal. Thus, these regulatory programs envision capture and disposal rather than recycling. See e.g., Clean Air Act (CAA) Section 111(b) (Carbon Pollution Standards for New Power Plants) and (d) (Carbon Pollution Standards for Existing Power Plants) emission standards for power plants, part of the climate related executive actions targeted by the new administration, and the CAA Prevention of Significant Deterioration construction permit program. In any case, these CAA greenhouse gas authorities, and others, are vulnerable to possible EPA reversal of the CAA Section 202(a) Greenhouse Gas Endangerment Finding, which provides a necessary legal basis for CAA carbon dioxide regulation.
With the potential lack of regulatory drivers mandating carbon capture and sequestration, the industry that has sprung up to meet the carbon dioxide capture and sequestration regulatory requirements, i.e., the CCS industry, addressed impacts of the new administration’s greenhouse gas policy reversal at the 2017 Carbon Management Technology Conference (CMTC). The CMTC is a conference held by the Founders Society of the engineering professional societies, including the American Institute of Chemical Engineers; the American Society of Mechanical Engineers; the American Institute of Mining, Metallurgical and Petroleum Engineers; the American Institute of Electrical Engineers; and the American Society of Civil Engineers, to discuss carbon capture, utilization, and storage (CCUS) technologies that provide options for lowering greenhouse gas emissions while maintaining fuel diversity for sustainable growth. CMTC and other carbon capture communities expressly recognize the inadequacy of the term CCS, which fails to recognize “use” of carbon dioxide post capture, and adoption of industry’s preferred acronym, “CCUS,” for carbon capture, use and sequestration. Carbon Management Technology Conference, CMTC 2017, http://fscarbonmanagement.org/
cmtc/201. The CMTC’s emphasis on carbon dioxide use is appropriate, as carbon dioxide is an important industrial product and a resource that should be utilized rather than simplydiscarded.
Of course, capturing carbon dioxide from stationary sources is technologically and quite economically challenging at the outset. These challenges may not be overcome for some sources. Consider, for example, the failure of the “Clean Coal Flagship” in Kemper County, Mississippi. See Jamie Conliffe, Clean Coal’s Flagship Project Has Failed, MIT Tech. Rev. (June 29, 2017), www.technologyreview.com /s/608191/clean-coals-flagship-project-has-failed. Overcoming existing carbon capture challenges to achieve an even modest degree of capture and utilization outside of command and control regulation is an even greater challenge. Particularly challenging is the fact that carbon dioxide is often produced specifically for immediate use or sale, or produced from a formation and conveyed by pipeline, rather than captured as a by-product and recycled. And of course, recycling projects are very sensitive to costs of recovery. Postcombustion carbon dioxide can contain many other by-products of combustion that degrade product purity. However, postchemical reaction carbon dioxide, such as carbon dioxide from ethanol production, is very pure. A wide range of carbon dioxide purities can be useful. Industry has been developing broader uses for carbon dioxide for many years. See e.g., 9th Carbon Dioxide Utilisation Summit, ACI, www.wplgroup.com/aci/event/co2. Perhaps we should
consider them again, now in the context of federal inaction.
As challenging as carbon capture may be for stationaryvsources of carbon dioxide, both technologically and economically, carbon dioxide has been recognized as such a significant global issue that capturing even well-mixed atmospheric carbon dioxide and rendering it into a product has captured a generation of scientists. For example, in 2015, the American Chemical Society touted a revolutionary molten carbon air battery that would spin carbon nanotubes from ambient concentrations of carbon dioxide. Press Release, American hemical Society, “Diamonds from the Sky” Approach Turns CO2 into Valuable Products (Aug. 19, 2015), www.acs.org/content/acs/en/pressroom/ newsreleases/2015/august/co2.html. If we are seriously considering recovering carbon dioxide from ambient air, then surely there is motivation to capture carbon dioxide closer to the stationary emission source to support utilization of this valuable resource. The “Furthering carbon capture, Utilization, Technology, Underground storage, and Reduced Emissions Act” (FUTURE Act), Senate Bill 1535, and its House companion, may gather steam and provide federal tax credits to help boost carbon capture and utilization. S. 1535, 115th Cong. (2017), www.congress.gov/bill/115th-congress/senate-bill/1535/text. Alongwith a more robust carbon dioxide American pipeline network, we might capture more carbon yet.
Ms. Ternes is a member of Earth & Water Law, LLC in Oklahoma City, Oklahoma, and a member of the editorial board of Natural Resources & Environment. She may be reached at firstname.lastname@example.org.
©2016. Published in The Business Lawyer, Vol. 71, No. 4, Fall 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.