The CCS Lifeboat: Charting a New Course for Industrial Carbon Capture

February 13, 2023   /  RYAN M. SWEENEY*


I. Introduction

It’s late on the night of April 14th, 1912, and Frederick Fleet and Reginald Lee are the crew members on duty in the crow’s nest of the RMS Titanic.[1] They spot something directly in the ship’s path. Fleet rings the lookout bell three times and calls the ship’s bridge: “Iceberg right ahead!” The bridge officers give the order to turn hard to port, but there’s a delay; the ship’s steam-powered steering mechanism takes up to 30 seconds to turn the tiller. We all know the rest.

What was it like to be those sailors, seeing imminent danger ahead and watching their ship turn too late? Did they believe the publicity claiming their ship was unsinkable? Or were they wondering about the lifeboats?

This article will discuss the basic concept of carbon capture and storage (CCS), the discord of the United States’ present industrial CCS course, and some possible alternatives. The article will then lay down planks for the carbon capture lifeboat, recommendations for practical legislative and administrative steps the federal government can take to steer away from the iceberg.

Primer on Carbon Capture & Storage

According to the Intergovernmental Panel on Climate Change (IPCC), humanity needs to keep planetary warming under 2.0 degrees Celsius to avoid the most cataclysmic effects of climate change.[2] To achieve this goal, the IPCC calculates we must reach net-zero emissions of carbon dioxide by approximately 2050.[3] This will require cutting approximately 800 gigatons (Gt)[4] of cumulative carbon dioxide (CO2) emissions between now and 2050, through some combination of (A) limiting future emissions and (B) removing existing carbon from the atmosphere.[5]

Industrial CCS techniques have potential to do both A and B—to a degree. Industrial CCS refers to mechanical and chemical methods for capturing and storing carbon molecules at fixed industrial sites, either limiting future emissions at facilities[6] through “point-source capture” or removing existing carbon from the atmosphere through “direct air capture.”[7] Of the 800 Gt total mitigation target, the International Energy Agency[8] estimates that industrial CCS should be responsible for sequestering a cumulative 120 to 160 Gt of CO2 by 2050, approximately 15 to 20 percent of the total.[9] To meet this target, by 2050 industrial CCS should be removing a net of 8 to 10 Gt of CO2 per year.[10] The current global industrial CCS capacity for removing carbon from the atmosphere is approximately 36.6 megatons per year,[11] less than 0.5 percent of the 2050 annual goal.[12]

Industrial CCS includes two models for storing carbon. Captured CO2 can be used for commercial purposes (the “commercialization model”) or disposed as a waste product (the “public service model”).[13] Under the commercialization model,[14] carbon is treated as a commodity and largely stored in a process known as “enhanced oil recovery” (EOR).[15] In EOR, CO2 is injected underground to repressurize oil fields and extract petroleum that is otherwise trapped in an unproductive well.[16] Under the public service model, CO2 is treated as a waste product and injected underground for permanent storage, also known as “geological sequestration” (GS).[17]

III. The Delusion & Dissonance of the Existing U.S. Carbon Capture Regime

The U.S. government has long recognized the potential for industrial CCS to assist in achieving our climate goals.[18] However, the government’s legal regime for this important pillar in the fight against climate change, which to date has largely focused on financial incentives, appears to be both delusional and self-defeating.

a. Financial Incentives

The U.S. has chosen an industrial CCS strategy that is all carrot, no stick. Although individual U.S. states and regional coalitions have instituted carbon pricing systems like a carbon tax or cap-and-trade,[19] the federal government has resisted calls for these measures for decades.[20] Instead, the U.S. has attempted to incentivize industrial CCS through subsidies, specifically tax credits.

In 2008, Congress created the 45Q tax credits. Section 45Q of the Internal Revenue Code authorizes tax credits per metric ton of GS carbon and EOR carbon.[21] The initial tax credits were set at $20 per ton of GS carbon and $10 per ton of EOR carbon.[22] Specifically, this meant any entity that injected CO2 underground without using it to extract oil (i.e., GS carbon) was eligible to claim $20 per metric ton of CO2 injected, while any entity that injected CO2 underground for the purpose of extracting oil (i.e., EOR carbon) was eligible to claim $10 per metric ton of CO2 injected. Congress has repeatedly extended these incentives, increasing the tax credits first to $50 per ton of GS carbon and $35 per ton of EOR carbon, and then again to $85 per ton of GS carbon and $60 per ton of EOR carbon with passage of the Inflation Reduction Act in August 2022.[23] Congress also expanded eligibility for the credits.[24] Unfortunately, these incentives have thus far been unsuccessful at scaling industrial CCS or making a meaningful dent in the net-zero mitigation goal, especially when carbon emissions for the entire lifecycle of a project are considered.[25] To hit its expected target of 120 to 160 Gt of cumulative carbon sequestration by 2050, global industrial CCS will need to be two to four times larger than the current global oil industry.[26] At recent rates of growth, global industrial CCS is projected to permanently store only 4.5 to 8.5 percent of the total mitigation target by 2050, well below the necessary 15 to 20 percent.[27]

b. Environmental Regulations

The federal government’s financial incentives appear to be at odds with its environmental regulations for injection wells. Pursuant to the Safe Drinking Water Act, the Environmental Protection Agency (EPA) is charged with protecting underground sources of drinking water (USDW) from pollution caused by drilling activities, which it does through the Underground Injection Control (UIC) program.[28] There are six classes of wells under the UIC program; EOR wells require a Class II permit, while GS wells require a Class VI permit.[29] The requirements for a Class VI permit are significantly more onerous than the requirements for a Class II permit. Specifically, a Class VI permit has additional planning, reporting, financial assurance, and monitoring requirements throughout the life of the project and for a default period of 50 years after project closure.[30] For comparison, hazardous waste facilities are only required to provide post-project monitoring and coverage for a period of 30 years.[31] The rationale for the additional requirements is that Class VI GS wells are expected to inject larger volumes of CO2 and have higher pressure and corresponding risk of USDW contamination than Class II wells, where the added pressure is relieved by extracting trapped petroleum.[32]

The additional burdens necessary to obtain Class VI permits have prevented completion of GS projects. The Wellington project, a demonstration facility in Kansas sponsored by the Department of Energy as a “test run” for the Class VI permitting process, provides a good example. The project sought a Class VI GS permit for permanent storage of 26 kilotons of CO2.[33] The project ran into roadblocks with the requirements for financial assurance and monitoring, which forced administrators to convert the project to a Class II well.[34] The EPA’s financial assurance regulations require project administrators to demonstrate the financial ability to complete all project tasks.[35] For the Wellington project, the emergency remedial plan was by far the largest expense, estimated by the EPA to cost between $3.2 million and $62.8 million.[36] Although the EPA allows financial assurance to be proven via numerous methods, these methods are either only available to larger corporations (e.g., self-demonstration tests) or not offered in the marketplace.[37] Third-party insurers do not provide coverage to this market due to the significant uncertainty of the risk.[38] Furthermore, even if insurers did provide coverage, the premium costs would far outweigh the benefits. As the Wellington administrators noted, “The cost of using a bond, insurance, or trust fund can be expensive and approach 3% of the face value annually. For coverage of $70M, the cost can approach $2M annually.”[39]

The amount of these premiums could decrease over time, particularly as more GS sites come on line, more data is obtained, and insurers become more confident in the risks. Geologists believe the risk of CO2 migration will go down over time as the CO2 plume becomes trapped in pore spaces through structural seals, capillary trapping, solubility trapping, and mineral trapping.[40] But at the high end of the premium range, including a 12-year period of facility operation and a 50-year post-closure monitoring period, the Wellington project could have been responsible for $124 million in premium payments. All of that to obtain a potential $2.21 million of tax credits.[41]

A successful project with a well-selected site would certainly be able to inject more CO2 and obtain a larger tax credit, but the general point stands: the financial assurance problem accounting for long-term liability for Class VI GS wells is out of step with the artificially low price of GS carbon tax credits, by orders of magnitude. Since creation of the Class VI permit in 2011, only two permits have been issued, both at a single ethanol facility in Illinois.[42] Those permits took the EPA six years to approve.[43] States have authority under EPA regulations to seek primacy over Class VI permit applications, which could speed up the permitting process, but to date the demand for GS under the existing industrial CCS regime has not been sufficient to generate significant state demand for Class VI primacy.[44]

While the 45Q tax credits appear designed to incentivize GS projects over EOR projects, the environmental regulations of the UIC program belie the notion that the federal government has a harmonious plan to address climate change through industrial CCS. Given the urgency and scale of the climate issues we face, far more needs to be done—and far sooner—if we are to avoid the iceberg.

IV. Competing Courses for Carbon Capture

There are several options the U.S. could pursue. One option would be to stay the course. The U.S. industrial CCS strategy sought to incentivize and scale GS by using EOR as a commercial springboard.[45] The federal government has doubled down on this strategy, pumping billions of dollars into new development projects in addition to the expanded tax incentives.[46] There are some indications that industry is responding to the new investment—the Global CCS Institute reported there were 27 industrial CCS projects operating around the world in 2021, with 108 more projects in development, 36 of them in the U.S.[47] However, this strategy relies on a flawed assumption about the commercial viability of carbon as a commodity, and often does not consider the emissions from a project’s entire carbon lifecycle.[48] Analyses of these factors show that there is no significant commercial market for carbon without government subsidy,[49] and that EOR has not made significant progress toward net carbon reductions.[50]

Researchers and environmental commentators have proposed various course corrections. Some proposals would ignore CCS and focus on installing a carbon tax and cap-and-trade system;[51] others would abandon the “polluter pays principle” in liability and financial assurance requirements;[52] still others would remove all subsidies for industrial CCS and reallocate that funding for natural (i.e., biological and chemical) CCS initiatives.[53]

Yet completely abandoning industrial CCS appears short-sighted and incompatible with the current U.S. political system. World energy demand is expected to increase into the future,[54] and the fossil fuel industry and its carbon emissions are not going away any time soon.[55] Additionally, the carbon capture problem will require a monumental effort “similar in scale to wartime mobilization.”[56] Global annual spending on physical assets for the net-zero transition is currently estimated at $5.7 trillion; a January 2022 report by McKinsey projected that meeting our net-zero goals will require a $3.5 trillion increase in spending per year.[57] As previously noted, by 2050 the global CCS industry will need to be two to four times larger than the current global oil industry.[58] It is difficult to see this type of civilization-wide mobilization coming together without the help of private industry. It’s all hands on deck to address this problem.

A middle course for the near future could acknowledge the flaws of the EOR-commercialization model while simultaneously acknowledging the important role fossil fuel companies must play. Moving toward a public service model for industrial CCS can accomplish these objectives.

V. Recommendations for a New Course: A Public Service Model

Assuming the U.S. government will continue to favor subsidies over carbon pricing in the near future,[59] there are several steps the legislative and executive branches can take to move toward a middle course. Congress can add three planks to the CCS lifeboat:

  1. Remove the EPA’s financial assurance barriers for Class VI wells by passing legislation modeled on the Price-Anderson Nuclear Industries Indemnity Act;[60]
  2. Bring the duration of operator responsibility for post-injection site care in line with other hazardous wastes, from a 50-year default down to a 30-year default; and
  3. Phase out 45Q tax credits for EOR projects, and dramatically increase 45Q tax credits for GS projects.

With these changes, the industrial CCS regime would retain important portions of the polluter pays principle—each Class VI well operator would be required to pay into the pool, and any operator responsible for USDW contamination or other CO2-related incidents pays more—while still acknowledging that capture and storage of CO2 is a valuable, necessary public service that should be subsidized accordingly.

The executive branch can also add its own planks to the CCS lifeboat, specifically to plug the liability leak. In the event Congress is unwilling to establish a Price-Anderson Act for industrial CCS or bring the duration of operator responsibility in line with other injection wells, the executive branch already has significant authority based on the language of existing, recent appropriations. There are two exclusive options available to administrative agencies and departments:

  1. Enter into limited indemnity agreements with GS projects, agreeing to cover financial assurance requirements of a Class VI well for GS carbon; or
  2. Pay for insurance premiums directly.

The Anti-Deficiency Act and the “self-insurance rule” provide two important bodies of law governing federal appropriations for indemnity and insurance. The Anti-Deficiency Act prevents the federal government from entering unlimited or open-ended indemnification agreements without specific congressional authorization.[61] However, the government can enter indemnity agreements without congressional authorization “where the indemnification agreement is a legitimate object of an appropriation, the agreement specifically provides that the amount of liability is limited to available appropriations, and there is no implication that Congress will, at a later date, appropriate funds to meet deficiencies.”[62]

The self-insurance rule states, “In the absence of express statutory authority to the contrary, appropriated funds are not available for the purchase of insurance to cover loss or damage to government property or the liability of government employees.”[63] In these situations, the federal government must generally operate as a self-insurer.[64] Yet this rule does not address the legality of the federal government purchasing commercial insurance premiums covering loss or damage to non-government property or liability of non-government employees. Additionally, even if the terms of the appropriation suggest the necessary insurance would cover government property or government employees—or where the government is found to hold “equitable title” to certain property[65]—there are exceptions to the self-insurance rule. These exceptions include when the government is purchasing insurance pursuant to the required terms of a contract or lease,[66] or where the object of the appropriation could not be “as readily accomplished without insurance as with it.”[67]

Thus, the executive branch has significant authority to enter indemnity agreements or pay for insurance directly, as long as doing so would be limited in scope by the terms of an indemnity agreement, lease, or other contract, and as long as the indemnity or insurance was necessary to achieve a particular appropriation’s purpose. Fortunately, Congress has made a number of recent appropriations that could be directly related—or are directly related—to expanding GS carbon projects,[68] and which are directly related to purposes contained in the Department of Energy Organization Act.[69] The recency and specificity of the congressional appropriations is important, particularly in light of Supreme Court precedent on the deference afforded to agency action, culminating with the decision in West Virginia v. Environmental Protection Agency in June 2022.[70]

The legislative and executive recommendations listed herein could right the ship, providing stability while additional planks (e.g., biological and chemical CCS methods) and structural changes (e.g., installation of a carbon tax and cap-and-trade system) necessary to achieve our climate goals progress below the waterline.

VI. Conclusion

The existing course charted by the U.S. government on industrial CCS is courting disaster. Industrial CCS technology has existed for almost a half-century, and the U.S. government has been investing in CCS for twenty years with the explicit goal of curbing carbon emissions. However, there has been little success at scaling the technology or making meaningful progress toward our climate goals, particularly because of the commercialization model and short-sighted environmental regulations. If we travel much further on this heading, it may be too late to turn the ship. But there is still time, and the recent passage of the Inflation Reduction Act shows political will to move in the right direction. The proposed legislative and administrative recommendations described in this article are concrete steps that can operate as the foundation for an industrial CCS lifeboat.



*Ryan M. Sweeney is an attorney living in Chicago.

[1] Walter Lord, A Night to Remember, New York: St. Martin’s Griffin (1955).

[2] Special Report: Global Warming of 1.5°C, Summary for Policymakers, IPCC (2018) (available at

[3] Id. Other greenhouse gases aside from carbon dioxide play a role in warming, most notably methane. Addressing emissions and existing concentrations of these other greenhouse gases will require their own strategies, some of which may use carbon emissions strategies as a model.

[4] A gigaton is equivalent to one billion tons; a megaton is one million tons; a kiloton is one thousand tons.

[5] Niall Mac Dowell, et al., “The role of CO2 capture and utilization in mitigating climate change,” Nature Climate Change, Vol. 7 (April 2017).

[6] According to the U.S. Congressional Research Service, point-source emitters are generally found in five industrial sectors: chemical production, hydrogen production, fertilizer production, natural gas processing, and power generation. Carbon Capture and Sequestration (CCS) in the United States, Congressional Research Service R44902 (Oct. 18, 2021) (available at (hereinafter “CRS Report, Oct. 2021”). The Global CCS Institute identifies other industrial emitters, including waste incineration, ethanol production, and iron, steel, and aluminum production. Global Status of CCS 2021, Global CCS Institute (2021) (hereinafter “Global CCS Institute 2021 Report”).

[7] Point-source capture uses containers at the source of emissions, while direct air capture uses large fans to vacuum ambient air. “Point source carbon capture from industrial sources,” National Energy Technology Laboratory (available at; Diana Olick, “These companies are sucking carbon out of the atmosphere—and investors are piling in,” CNBC (Jul. 29, 2021) (available at Both methods then use membranes or chemical techniques to separate carbon for later transport and storage. “Point source carbon capture program,” National Energy Technology Laboratory (available at; Direct Air Capture of CO2 with Chemicals, American Physical Society (Jun. 1, 2011) (available at; Shigenori Fujikawa, et al., “A new strategy for membrane-based direct air capture,” Polymer Journal, 53:111-19 (2021) (available at

[8] The International Energy Agency is an autonomous intergovernmental agency specializing in analysis and policy recommendations for the global energy system.

[9] Mac Dowell, et al., supra n. 5. The remainder is expected to come from increased efficiency, reductions in use, and natural CCS methods, including biological carbon removal (e.g., forestation and afforestation initiatives, soil initiatives, ocean fertilization) and chemical carbon removal (e.g., terrestrial enhanced mineral weathering, stimulating ocean alkalinity). Tracy Hester, “Legal Pathways to Negative Emissions Technologies and Direct Air Capture of Greenhouse Gases,” 48 Envtl. L. Rep. News & Analysis 10413 (May 2018).

[10] Mac Dowell, et al., supra n. 5.

[11] Ahmed Abdulla, et al., “Explaining successful and failed investments in U.S. carbon capture and storage using empirical and expert assessments,” Envtl. Res. Lett. 16:014036 (2020); Global CCS Institute 2021 Report, supra n. 6.

[12] See Justine Calma, “Visualizing the scale of the carbon removal problem,” The Verge: (Apr. 7, 2022) (available at, showing a good visual representation of the challenge for direct air capture technology.

[13] June Sekera & Andreas Lichtenberger, “Assessing Carbon Capture: Public Policy, Science, and Societal Need,” Biophysical Economics and Sustainability, 5:14 (Oct. 2020).

[14] The commercialization model is often called “carbon capture, utilization, and storage,” or “CCUS.”

[15] Sekera & Lichtenberger, supra n. 13. CRS Report, Oct. 2021, supra n. 6.

[16] Id.; Peter Connors, et al., Review of Federal, State, and Regional Tax Strategies and Opportunities for CO2-EOR-Storage and the CCUS Value Chain, U.S. Department of Energy, U.S. Energy Association, Orrick, and FTI Consulting (Sept. 21, 2020).

[17] Sekera & Lichtenberger, supra n. 13; The Tax Credit for Carbon Sequestration (Section 45Q), Congressional Research Service, Vers. 2:IF11455 (June 8, 2021) (available at (hereinafter “CRS Report, June 2021”).

[18] The Department of Energy has funded research and development into industrial CCS since 1997, and Congress has repeatedly authorized financial incentives for industrial CCS since 2008. CRS Report, Oct. 2021, supra n. 6, at “Summary”; see also discussion of tax incentives for industrial CCS, infra.

[19] State and Trends of Carbon Pricing 2021, The World Bank (May 2021).

[20] Teal Jordan White, “Clean Air Act Mayhem: EPA’s Tailoring Rule Stitches Greenhouse Gas Emissions Into the Wrong Regulatory Fitting,” 18 Tex. Wesleyan L. Rev. 407 (2011); Effects of a Carbon Tax on the Economy and the Environment, Congressional Budget Office (May 2013) (hereinafter “CBO Report, May 2013”); “Sens. Whitehouse and Schatz Introduce Carbon Fee Legislation,” Sen. Sheldon Whitehouse Press Release (Nov. 19, 2014) (available at (hereinafter “Whitehouse Press Release”); Adele Morris, “Why the federal government should shadow price carbon,” Brookings Institute (July 13, 2015); Peter Nelson, “Carbon Pricing versus Federal Regulations to Reduce US Emissions,” Resources for the Future (March 1, 2017).

[21] 26 U.S.C. § 45Q (current). Similar to the 45Q incentives, section 48A of the Internal Revenue Code authorizes tax credits between 15 and 30 percent of a coal-fired power plant’s qualified taxable investment if it captures and sequesters 65 percent of its carbon emissions. 26 U.S.C. § 48A.

[22] Pub.L. 110-343 (enacted Oct. 3, 2008).

[23] Pub.L. 115-123 (enacted Feb. 9, 2018); Pub.L. 116-260 (enacted Dec. 27, 2020); Pub.L. 117-169 (enacted Aug. 16, 2022).

[24] Pub.L. 115-123; Pub.L. 116-260; Pub.L. 117-169. The prior statute put a claim cap on eligibility, allowing claims until 75 megatons of CO2 were captured and sequestered. The present law states facilities are eligible if they begin construction before January 1, 2033, and allows claims for a 12-year period once a facility is “placed in service.” Id. The Internal Revenue Service issued regulations to address the gap between the “beginning of construction” deadline and the “placed in service” trigger for the 12-year claims period, including a requirement that facilities must engage in continuous construction to be eligible. 26 C.F.R. § 1.45Q-2(g). However, this continuity requirement permits numerous exceptions, including allowances for delays in obtaining permits and financing. I.R.S. Notice 2020-12: Beginning of Construction for the Credit for Carbon Sequestration Under Section 45Q (March 9, 2020). As explained in more detail herein, obtaining permits and financing are common problems. Under this industrial CCS regime, a fossil fuel company seeking to engage in carbon additive-EOR can start construction on a facility in December 2032; toll the continuity requirement during the period it is waiting for EPA permitting or financing, possibly adding years before the continuity requirement resumes; take additional years to complete construction and place the facility into service; and then begin claiming tax credits for a 12-year period. CCS facilities “usually take seven to 10 years from concept study through feasibility, to design, construction, then operation.” Global CCS Institute 2021 Report, supra n. 6. Reflecting on the lackluster results of the industrial CCS regime to this point, it is not an unreasonable fear that fossil fuel companies may be collecting federal subsidies for net carbon additive activities into 2050 and beyond.

[25] Alex Dewar & Bas Sudmeijer, “The Business Case for Carbon Capture,” Boston Consulting Group (Sept. 24, 2019); Mac Dowell, et al., supra n. 5; Global CCS Institute 2021 Report, supra n. 6; Sekera & Lichtenberger, supra n. 13.

[26] Mac Dowell, et al., supra n. 5.

[27] Id. at 247.

[28] Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells; Final Rule, Federal Register, Vol. 75, No. 237 (Dec. 10, 2010) (hereinafter “Class VI Final Rule”); Injection and Geologic Sequestration of Carbon Dioxide: Federal Role and Issues for Congress, Congressional Research Service (Jan. 24, 2020) (hereinafter “CRS Report, Jan. 2020”).

[29] Class VI Final Rule, supra n. 28; CRS Report, Jan. 2020, supra n. 28.

[30] Charles C. Steincamp, et al., “Regulation of Carbon Capture and Storage: An Analysis Through the Lens of the Wellington Project,” 51 Envtl. L. 4:1149 (2021); Class VI Final Rule, supra n. 28.

[31] Steincamp, et al., supra n. 30.

[32] Id.; CRS Report, Jan. 2020, supra n. 28.

[33] Steincamp, et al., supra n. 30.

[34] Id.

[35] Id.; 40 C.F.R. § 146.85.

[36] Steincamp, et al., supra n. 30.

[37] Id.

[38] Id.

[39] Id.

[40] Sally M. Benson and David R. Cole, “CO2 Sequestration in Deep Sedimentary Formations,” Elements (Oct. 2008) Vol. 4, 325-31; Christa Marshall, “Can Stored Carbon Dioxide Leak?” ClimateWire (June 28, 2010) (available online at

[41] At the current 45Q rates, since passage of the Inflation Reduction Act.

[42] Anne Isdal Austin, et al., “State-Level Permitting Primary May Boost Carbon Capture and Storage,” JDSupra (Aug. 12, 2021); Connors, et al., supra n. 16; CRS Report, Oct. 2021, supra n. 6; Abdulla, et al., supra n. 11.

[43] Isdal Austin, et al., supra n. 42.

[44] Id.

[45] JJ Dooley, et al., “An Assessment of the Commercial Availability of Carbon Dioxide Capture and Storage Technologies as of June 2009,” U.S. Dep’t of Energy (June 2009); Wendy B. Jacobs, et al., “Proposed Roadmap for Overcoming Legal and Financial Obstacles to Carbon Capture and Sequestration,” Discussion Paper, Harvard Kennedy School of Government, Belfer Center for Science and International Affairs (March 2009).

[46] Justine Calma, “The infrastructure deal could create pipelines for captured CO2,” The Verge (Aug. 3, 2021).

[47] Global CCS Institute 2021 Report, supra n. 6.

[48] Sekera & Lichtenberger, supra n. 13.

[49] Id.

[50] Mac Dowell, et al., supra n. 5.

[51] See Jordan White, supra n. 20; CBO Report, May 2013, supra n. 20; Whitehouse Press Release, supra n. 20; Morris, supra n. 20.

[52] The polluter pays principle is “an environmental policy principle reflecting the idea that the costs of pollution should be borne by those who cause it.” Paul Bailey, et al., “Can Governments Ensure Adherence to the Polluter Pays Principle in the Long-Term CCS Liability Context?” 12 Sustainable Dev. L. & Policy 46 (2012).

[53] Sekera & Lichtenberger, supra n. 13.

[54] Id.; Mac Dowell, et al., supra n. 5. According to the U.S. Energy Information Administration, energy consumption in developed countries (members of the Organisation for Economic Co-operation and Development, or “OECD”) is projected to rise slightly through 2050. Globally, however, energy consumption is projected to increase by nearly 50 percent compared with 2020, mostly from growth in non-OECD countries. International Energy Outlook 2021: Narrative, U.S. Energy Information Administration, Oct. 2021 (available at

[55] Anyone suggesting otherwise has ignored the winds of U.S. campaign finance law. See Robert J. Brulle, “The climate lobby: a sectoral analysis of lobbying spending on climate change in the USA, 2000 to 2016,” Climatic Change, 149:289-303 (Jul. 19, 2018), showing that lobbying by corporate interests involved in production or use of fossil fuels outspent that of environmental organizations and the renewable energy industry by a ratio of ten to one. See also Niall McCarthy, “Oil and Gas Giants Spend Millions Lobbying to Block Climate Change Policies,” (Mar. 25, 2019) (available at; Mac Dowell, et al., supra n. 5.

[56] Mac Dowell, et al., supra n. 5.

[57] The net-zero transition: what it would cost, what it could bring, McKinsey & Co. (Jan. 2022).

[58] Mac Dowell, et al., supra n. 5.

[59] See Connors, et al., supra n. 16: “Absent a national carbon tax, capturing CO2 provides little financial incentive for entities to invest in costly CCUS technologies to capture CO2.”

[60] The Price-Anderson Act was able to adequately address similar problems to those facing industrial CCS by covering risk of nuclear accidents through a combination of an industry-pooled trust fund; capped liability for the operator responsible for an incident; and government indemnification of the remainder. “The Price-Anderson Act, Background Information,” Center for Nuclear Science and Technology Information (Nov. 2005) (available at

[61] 31 U.S.C. § 1341.

[62] See Chapter 6(C), “The Antideficiency Act,” Principles of Federal Appropriations Law (The Red Book): Vol. II, U.S. Government Accountability Office (Feb. 2006, 3d ed.).

[63] See Chapter 4(C)(10), “Insurance,” Principles of Federal Appropriations Law (The Red Book): Vol. I, U.S. Government Accountability Office (Jan. 2004, 3d ed.).

[64] Id.

[65] Id., citing 35 Comp. Gen. 393 (1956) and 35 Comp. Gen. 391 (1956), finding the government was allowed to pay a lessor for the cost of insuring against the lessor’s risk where the government holds equitable title under a lease-purchase agreement.

[66] “The government frequently pays for insurance indirectly through contracts, grants, and leases.” Id., citing B-72120, Comptroller Decision on Insurance for Lease, U.S. Government Accountability Office (Jan. 14, 1948). Additionally, the Red Book notes “insurance may be purchased on . . . private property . . . where the owner requires insurance coverage as part of the transaction.” Id.

[67] Id.; see also exceptions to self-insurance rule stated in B-151876, Comptroller Comments on Department of Agriculture Announcement, U.S. Government Accountability Office (Apr. 24, 1964): “where services or benefits not otherwise available can be obtained by purchasing insurance.”

[68] This includes $825 million for fossil energy and carbon management activities in the Energy and Water Development and Related Agencies Appropriation Act of 2022. Div. D of the Consolidated Appropriations Act of 2022, Pub.L. 117-103. Congress also authorized $211.72 million for electricity activities, $750 million for fossil energy research and development activities, $319.2 million in non-defense environmental cleanup activities, and $7.026 billion in science activities from the Energy and Water Development and Related Agencies Appropriation Act of 2021, found at Division D of the Consolidated Appropriations Act of 2021, Pub.L. 116-260. From the 2022 Act, Congress also authorized $277 million for electricity activities, $333.863 million for non-defense environmental cleanup activities, and $7.475 billion for science activities. Pub.L. 117-103. All of these appropriations include similarly broad language about the expenditures, e.g., for “for plant or facility acquisition or expansion, and for conducting inquiries, technological investigations, and research concerning the extraction, processing, use, and disposal of mineral substances without objectionable social and environmental costs.” Pub.L. 116-260; Pub.L. 117-103. Congress has also authorized billions of dollars of appropriations for “Carbon Capture, Utilization, Storage, and Transportation Infrastructure” in the Infrastructure Investment and Jobs Act of 2021. Divs. D and J of the Infrastructure Investment and Jobs Act, Pub.L. 117-58.

[69] The Department of Energy Organization Act (42 U.S.C. § 7101 et seq.) includes the following purposes:

(2) To achieve . . . effective management of energy functions of the Federal Government.

(13) To assure incorporation of national environmental protection goals in the formulation and implementation of energy programs, and to advance the goals of restoring, protecting, and enhacing environmental quality, and assuring public health and safety.

(14) To assure, to the maximum extent practicable, that the productive capacity of private enterprise shall be utilized in the development and achievement of the policies and purposes of this chapter.

(15) To provide for, encourage, and assist public participation in the development and enforcement of national energy programs.

(17) To foster insofar as possible the continued good health of the Nation’s small business firms, public utility districts, municipal utilities, and private cooperatives involved in energy production, transportation, research, development, demonstration, marketing, and merchandising.

[70] 597 U.S. ­­___ (June 30, 2022).

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