D.C. Circuit Hears Oral Argument On Challenge To Carbon Sequestration RCRA Conditional Exclusion

In December 2010, the United States Environmental Protection Agency ("EPA") promulgated regulations under the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq., creating a new category of underground injection wells—Class VI—to govern underground injection of carbon dioxide ("CO2") for geologic sequestration. Geologic sequestration involves capturing CO2 gas from stationary emissions sources, compressing that gas into what is called a supercritical fluid, transporting the fluid by pipeline, and then injecting the fluid into Class VI underground injection wells.

On January 3, 2014, the EPA promulgated a rule under the Resource Conservation and Recovery Act ("RCRA") conditionally excluding from the definition of "hazardous waste" hazardous CO2 streams that are injected into Class IV wells for purposes of geologic sequestration and that meet other criteria. 79 Fed. Reg. 350 (Jan. 3, 2014).