Today, the Emmett Environmental Law and Policy Clinic released a working paper entitled “Proposed Liability Framework for Geological Sequestration of Carbon Dioxide,” and a model statute, the CCS Liability Act of 2010.  The paper proposes a detailed liability framework to provide certainty, assuage public concerns, and remove barriers to these projects.  In particular, the proposal includes the following elements to encourage the development of CCS as a climate change mitigation strategy:

  • caps on liability for up to ten early demonstration projects, with amounts above the cap paid by an industry-financed fund (the “CCS Trust Fund”);
  • cost-sharing between post-demonstration sequestration site owners/operators and the industry-financed CCS Trust Fund in the event of catastrophic damages during the operational period;
  • for both demonstration and post-demonstration projects, the post-closure transfer of liability to a government entity, with all post-closure liability claims and stewardship costs paid out of the industry-financed CCS Trust Fund;
  • establishment of privately operated sequestration sites on public lands to minimize transaction costs, delays, and potential trespass and nuisance claims;
  • preemption of nuisance and trespass claims unless actual damages exceed a certain dollar amount;
    a streamlined claims process; and
  • certainty and transparency for businesses and the public alike.

Working Paper: Proposed Liability Framework for Geological Sequestration of Carbon Dioxide.

The CCS Liability Act of 2010.