Forest Service Proposes Regulatory Amendments to Permit Carbon Sequestration on NFS Lands

On Nov. 3, 2023, the U.S. Forest Service issued a proposed rule to amend its special use regulations to authorize carbon dioxide (CO₂) sequestration on National Forest System (NFS) lands (both national forests and grasslands). CO₂ sequestration is the process of injecting CO₂ deep underground into geologic formations for permanent storage—an exclusive and a perpetual use of subsurface pore space. Currently, Forest Service regulations prohibit any exclusive and perpetual use of NFS lands and the proposed rule seeks to carve out an exemption for CO₂ sequestration.
 

Proposed Regulatory Changes

The Forest Service’s special use regulations prohibit the agency from authorizing any exclusive and perpetual use and occupancy of NFS lands, which prevents the agency from considering any application to use NFS pore space for CO₂ sequestration. The proposed rule would amend 36 C.F.R. § 251.54(e)(1)(iv) to change the screening criteria for special use applications to allow the Forest Service to “authorize exclusive and perpetual use and occupancy for carbon capture and storage in subsurface pore spaces.” The proposed rule would not otherwise alter the special use permit approval process, including the other initial screening criteria.

To build on the changes to 36 C.F.R. § 251.54(e)(1)(iv), the proposed rule also would define “carbon capture and storage” as “the capture, transportation, injection, and storage of carbon dioxide in subsurface pore spaces in such a manner as to qualify the carbon dioxide stream for the exclusion from classification as a ‘hazardous waste’ pursuant to United States Environmental Protection Agency regulations at 40 C.F.R. § 261.4(h).”

If finalized, the proposed rule would not authorize any CCS projects to use NFS lands. Instead, it would permit interested entities to apply for a special use authorization to use pore space underlying NFS lands and owned by the United States for CO₂ sequestration. To sequester CO₂ within NFS lands, interested applicants would need to apply and receive a special use authorization from the Forest Service. The special use permit process involves reviews under other federal laws including the National Environmental Policy Act and the National Historic Preservation Act. Additionally, the Environmental Protection Agency must issue a Class VI underground injection permit for any well drilled to inject CO₂ into pore space.
 

The Upshot

The Forest Service manages 193 million acres of national forests and grasslands. If finalized, this proposed rule would unlock nearly a third of federal lands to support greater deployment of carbon capture and sequestration projects and potentially permit the Forest Service to authorize storage of billions of tons of CO₂ underneath NFS lands.

Public comments on the proposed rule are due on Jan. 2, 2024, via the Federal eRulemaking Portal. Our firm has extensive experience in permitting projects on NFS lands and has a team of attorneys focused on carbon management. If you or your company is interested in learning more about developing a CO₂ sequestration project on NFS lands, please contact the authors.

This document is intended to provide you with general information regarding a proposed federal rule authorize carbon dioxide (CO2) sequestration on National Forest System (NFS) lands. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.