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Academics, Attorneys Delve Into Prospects For Using Tort Law in Carbon Sequestration
By Alan Kovski

A system of federal law and regulation for carbon sequestration that introduces strict legal liability for some categories of problems could add clarity but could also be a disincentive to sequestration and could stir a federal-state conflict, according to participants in a March 22 discussion.

The liability proposal came from two University of Texas academics. They proposed that sequestration sites could be assessed and ranked by quality, and then the tort law concept of strict liability could be applied to the corporate operators of lower-quality locations. That would encourage developers to select higher-quality sites. They presented their idea at a discussion hosted by the Environmental Law Institute and Vanderbilt University Law School.

Priya Aiyar, Energy Department deputy general counsel for environmental and nuclear programs, questioned the value of adding mixing tort law with regulation. Strict liability would not work better than regulation, in her view.

The capture and sequestration of carbon dioxide has been proposed as a partial solution to limiting climate change, although it is has not been done in the United States and has only been tested in a few other nations. U.S. carbon storage would be regulated through the Underground Injection Control program, governing disposal of gases and liquids in such places as deeply buried saline aquifers.

Another participant in the discussion asked David Adelman, one of the authors of the liability proposal, what weaknesses he saw in the Underground Injection Control program that needed to be remedied with a layer of tort law. Adelman acknowledged the question as a good one for which he had no immediate answer.

State Authority, Federal Legislation
Aiyar also cautioned that a federal law designed to control risks to water could clash with the interests of states. States regulate water rights and also used federal authority delegated to them under the Clean Water Act and several other laws. A similar concern was expressed by John Pendergrass of the Environmental Law Institute.

“States have jealously guarded their authority over groundwater,” Pendergrass said.
A federal requirement for strict liability applicable to any category of carbon sequestration also would require legislation. Speakers only briefly touched on the questionable prospects of any bill to impose strict liability for sequestration site operators.

Aiyar and Fred Eames, a partner in the Hunton & Williams law firm, both emphasized that industry needs more incentives, not more liabilities, to encourage it to begin trying carbon sequestration. Adelman did not dispute the need for incentives.

The proposal by the two academics also attempted to avoid the subject of long-term responsibility covering not only underground injection of carbon dioxide. Aiyar and Eames both suggested the long-term aspects of the issue probably are not be separable from near-term aspects.

Reproduced with permission from Daily Environment Report, 57 DEN A-11 (March 25, 2013). Copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>