64 TEXAS JOURNAL OF OIL , GAS , AND ENERGY LAW [ Vol . 16:1
govern CO 2 sequestration projects . 97 Most of these statutes require the injector / storer of CO 2 to apply to the state ’ s applicable regulatory agency for a permit for a sequestration project . Prior to the approval of such an application , the applicable state agency will typically be required to determine one or more of the following findings : ( 1 ) the target reservoir intended for sequestration is suitable for storage purposes , ( 2 ) the reservoir sought for sequestration is either not producing native mineral substances or the injector / storer has obtained consent from a certain threshold of owners in interest of the reservoir where the storage is being contemplated , and / or ( 3 ) operations will not interfere with underground water resources . 98 Once CO 2 sequestration operations have been permitted , the state regulatory agency will often have the power to issue additional protective orders to prevent interference from mineral estate development . Some of these statutes have also established the right to use eminent domain to condemn portions of the surface , mineral , and subsurface estates ( though these specific powers vary depending upon jurisdiction ) as is reasonably necessary for the construction of sequestration facilities . 99 To the extent the injector / storer cannot acquire title to all of the relevant rights to the surface , mineral , and subsurface estates through eminent domain or through voluntary agreement , it will need to reach agreements similar to those used for unitization in the EOR context to account for the rights belonging to other interest owners across the project area .
EOR and CO 2 sequestration projects also contain a notable difference with respect to permitting . Section 1421 of the Safe Drinking Water Act ( SDWA ) prohibits underground injection wells except when authorized by a rule or permit . 100 Under the EPA ’ s Underground Injection Control ( UIC ) program , there are six classes of injection wells permitted by the EPA . The UIC program designates EOR wells as Class II injection wells and sequestration wells as Class VI injection wells . 101
The EPA estimates that more than 175,000 Class II wells have been permitted in the United States . 102 Pursuant to Section 1425 of the SDWA , the EPA may delegate the primary implementation and enforcement authority ( also known as primacy ) for the approval and oversight of Class II wells to state governments . 103 In order to obtain primacy , a state must develop a permitting
97 . For a complete summary of state ’ s sequestration statutes , see Anderson & Gresham , supra note
77 , at 9 – 10 . 98 . See generally , LA . STAT . ANN . § 30:1108 ( 2019 ). 99 . Id . 100 . ANGELA C . JONES , CONG . RES . SERV ., INJECTION AND GEOLOGIC SEQUESTRATION OF CARBON
DIOXIDE : FEDERAL ROLE AND ISSUES FOR CONGRESS 7 – 8 ( 2020 ). 101 . Durrant , supra note 72 , at 21 . 102 . JONES , supra note 99 , at 9 . 103 . U . S . ENV ’ T . PROTECTION AGENCY , GEOLOGIC SEQUESTRATION OF CARBON DIOXIDE : UN-
DERGROUND INJECTION CONTROL ( UIC ) PROGRAM CLASS VI PRIMACY MANUAL FOR STATE DIREC-
TORS 5 ( 2014 ) [ hereinafter Primacy Manual ].