Carbon Sequestration in Illinois: Legal Framework and Calls for Continued Advocacy

Carbon sequestration has been touted as a solution to our ongoing battle against the destructive nature of climate change. New technologies are popping up all the time, and with them, there is a need for more finely tuned legislation to regulate the various novel methods and their applications.  Illinois has been increasingly proactive in this area, encouraging scientific approaches and more robust environmental regulation.

Greenhouse Gases and Carbon Sequestration

Greenhouse gases have long been known to be a main driver of global climate change. The most commonly produced greenhouse gas is carbon dioxide, according to the United States Geological Survey, among, of course, many other reputable scientific sources. In 2022, carbon dioxide accounted for 80% of all greenhouse gas emissions caused by human activities in the United States, according to the U.S. Environmental Protection Agency.

In order to reduce the amount of carbon dioxide in the atmosphere, the process of carbon sequestration has been increasingly implemented. During this process, carbon dioxide is captured and permanently stored. This is done with the ultimate goal of easing and slowing global climate change.

There are two different methods of sequestering carbon dioxide: geologic sequestration and biologic sequestration.  Geologic sequestration is done by pressurizing carbon dioxide until it becomes a liquid and injecting it into porous underground geologic formations as a method of storage. This is often done in conjunction with oil drilling because by injecting carbon dioxide into the oil-bearing ground, the oil becomes less thick and viscous, thereby making it easier to pull up from the earth through oil wells.  

There is also what is called biologic sequestration. During biological carbon sequestration, carbon from the atmosphere goes through a natural process whereby soil, vegetation, marine ecosystems, and live wood absorb it in and store it. This is why advocates often champion the planting of more acres of trees, and discourage deforestation – because the more trees there are sucking up carbon from the air, the less there is floating around.  

That is what makes trees what is known in the scientific community as “carbon sinks”. A carbon sink refers to anything that absorbs more carbon than it releases. Increased levels of carbon lead to an increase in the natural greenhouse effect on our atmosphere, which warms the Earth and causes us great climate-related problems.

Geologic carbon sequestration is the one in which oil production companies are interested in, for the purpose of making their endeavors easier and more efficient, and therefore maximizing profits. So, although geologic carbon sequestration is helpful towards the ultimate goal of reducing carbon-based greenhouse gas emissions, such companies are not necessarily in it for purely admirable reasons.

For some, that is not to say that this practice should be discouraged. If oil companies are already drilling for oil, they may as well sequester some carbon while they’re at it, in the view of some of the relevant stakeholders. However, it requires highly specific regulations to allow for carbon sequestration to be done in the least harmful and most beneficial way.  

There needs to be monitoring; plans in place for safe evacuation and long-term liability if carbon dioxide is accidentally released at a high rate into the atmosphere and adversely affecting local populations, wildlife, and vegetation; caps on the overuse of eminent domain; and, crucially for oil companies, a ban on the use of captured carbon dioxide for enhanced oil recovery.

SAFE CC Act

And this is what the proposed legislation in the Illinois General Assembly contemplates – carbon dioxide sequestration pipelines and the related safeguards necessary for their implementation.

The Safety and Aid for the Environment in Carbon Capture and Sequestration Act (known as the SAFE CC Act), contained in Senate Bill 1289, contemplates a moratorium and permitting process for carbon dioxide pipelines and carbon sequestration in Illinois. This Act would allow companies who are looking to sequester carbon on private land to move forward with their plans if 75% of the land owners whose land would be affected agree to the company’s plan.  

This may seem like a large percentage, but in effect, this still leaves a quarter of affected landowners with no recourse or ability to successfully petition to halt a project if they are opposed to it being carried out on their land.

The Act “sets forth provisions regarding: ownership and conveyance of pore space; integration and unitization of ownership interests; surface access for pore space owners; compensation for damages to the surface; and additional landowner rights.”  “Pore Space” refers to “the portion of geologic media that contains gas or fluid, including, but not limited to, oil or water, and that can be used to store carbon dioxide.” “Pore space owner” is anyone who has title to a pore space, so essentially, a landowner whose land has gas or water on it.  

Section 10 of the Act explains that only owners of surface rights have title to pore space. This means that those who only have rights to below ground- interests are not entitled to pore space ownership. The Act also specifies that “if at least 2 pore space owners own pore space located within a proposed sequestration facility, the owners may agree to integrate the owners' interests to develop the pore space as a proposed sequestration facility for the underground sequestration of carbon dioxide.” So, it is possible for multiple landowners to combine interests in the land which contains the pore space.

However, “If all of the pore space owners within a proposed or permitted sequestration facility do not agree to integrate the pore space owners' interests, the sequestration operator may petition the Department of Natural Resources to issue an order requiring the pore space owners to integrate their interests and authorizing the sequestration operator or sequestration facility permit holder to develop and use the integrated pore space as a sequestration facility for carbon sequestration.” It goes on the explain that “such an order for unitization and integration of pore space may only be issued if the sequestration operator has obtained the rights from pore space owners of pore space underlying at least 75% of the surface area above the proposed sequestration facility.”

This is the portion, mentioned above, which climate change advocates from groups like the Illinois Clean Jobs Coalition and Earthjustice have taken issue with. Pam Richart, co-founder of the Coalition to Stop CO2 Pipelines, has said that this would prejudice owners of large tracts of land and in effect create a situation in which owners of tracts comprising several smaller acres would have fewer rights than owners of large land tracts.  

The petition to the Department of Natural Resources requires a nonrefundable application fee of $250,000 and also has some content requirements. It must include, among other things, the following:

• the name and address of the petitioners

• the property index numbers or legal descriptions of the parcels of property and a geologic description of the pore space within the proposed or permitted sequestration facility

• the names and addresses of all pore space owners owning property within the proposed or permitted sequestration facility and a list of consenting and nonconsenting pore space owners, as well as a list of all properties for which a pore space owner is unknown or unable to be located

• a statement that the petitioner has exercised due diligence to locate each pore space owner and to seek an agreement with each for pore space rights for the sequestration facility, including a description of the good faith efforts taken to identify, contact, and negotiate with each nonconsenting pore space owner

• a statement of the type of operations for the proposed or permitted sequestration facility

• the method by which pore space owners will be compensated for the use of the pore space, and a copy of all agreements entered into with consenting pore space owners regarding the compensation paid to a consenting pore space owner

• the method by which nonconsenting pore space owners will receive just compensation

These last two points seem to take care of the concern regarding non-consenting owners and having their land rights essentially subverted. However, some landowners may not want to be compensated but instead for the use of the land to not occur outside of their consent. The compensation may not be what they are after and may not be worth it to them regardless.  

Eminent Domain

According to the Institute for Justice, eminent domain gives the government the power to take your property, even if you don't want to sell. This is allowed as long as they provide you with just compensation and as long as the property taken is then put towards public use. The Illinois Eminent Domain Act provides that “private property shall not be taken or damaged for public use without just compensation.”  

The Farm Bureau was one group that opposed the SAFE Act partly due to the fact that it doesn’t directly address eminent domain. The language of the Act does provide for just compensation, but again, this is not necessarily what landowners may want.

Another reason that some organizations are opposed to the Act is because there had previously been another version of the bill with significantly tighter restrictions which advocates feel better provide for the necessary controls. The previous version stipulated that there would be “pipeline setbacks for safe evacuation, limits on eminent domain, expanded monitoring at carbon sequestration sites, provisions for long-term liability in the event of disaster, a ban on the use of captured carbon dioxide for enhanced oil recovery.” It further stipulated that when sites are proposed for carbon sequestration, regulatory agencies would review the greenhouse gas emissions that the sites would create over their lifetime and would consider alternatives to sequestration.

Instead, the new bill is more lax when it comes to these provisions, allowing for such a large chunk of landowners to be overstepped in their desires. The moratorium it contemplates is for 2 years, for example, while the previous version was for 4 years.  

It has already arrived at the Governor’s desk to be signed, but many like Ms. Rickart are not satisfied with its contents. Several legislators expressed concerns as well, and many county governments have rejected proposed sequestration sites.  

There are some benefits to the new version, though. It creates the requirements of notification to landowners, and for companies to pay into an emergency fund and create an evacuation plan, as noted above. The Illinois Commerce Commission is now mandated to consider safety when reviewing applications for a grant of eminent domain. There is also the requirement to hold public meetings related to sequestration proposals, allowing members of the public to weigh in.  

The new Act requires companies to set aside funds for future environmental mitigation, taking that burden off of the state if ever the need were to arise. Because it also prohibits the use of carbon dioxide for enhanced oil recovery, it does not encourage further oil extraction and operations of coal plants, so this helps to ease some environmental concerns.  

There can be some improvements, and future amendments are likely to be pushed through with the help of advocates. In the meantime, this is a decent start.