Four groups file federal challenge to state's right to permit injection wells for carbon storage

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15-05-2025

May 14—dbeard @dominionpost.com MORGANTOWN — The West Virginia Surface Owners Rights Organization and three environmental groups have joined in a federal court challenge to the U.S. EPA granting West Virginia the right to primacy in permitting Class VI Underground Injection Wells (UIC) — used for carbon capture and sequestration.
They contend the state won't adequately fund or conduct oversight of the permitting, posing environmental and health hazards.
In the most recent court action, the Fourth Circuit Court of Appeals granted a request by the state and the Department of Environmental Protection to intervene in the case in order to protect the state's interests.
The four petitioners — WVSORO, Sierra Club, West Virginia Rivers Coalition and West Virginia Highlands Conservancy — filed their challenge on April 11. The state and DEP moved to intervene on May 8 and the court granted the motion on May 9. The petitioners then issued a press release on Tuesday spelling out their reasoning.
But first, some quick background.
Class VI well permitting authority belongs to the EPA for most states. States can apply for and receive primary enforcement authority, often called primacy, to implement EPA approved UIC programs.
The EPA is notorious for dragging its feet in approving permits — often taking years. West Virginia applied for primacy in May 2024 after more than two years of consultation and coordination with EPA, the state said in its May 8 motion, and primacy was granted on Feb. 26 this year, via a Final Rule.
West Virginia became the fourth state to obtain primacy, following North Dakota, Louisiana and Wyoming.
The four groups are suing EPA Administrator Lee Zeldin and EPA Region III Regional Administrator Amy Van Blarcom-Lackey.
In their motion to intervene, the state and DEP note that EPA's UIC regulations are meant to prevent underground injection from endangering drinking water sources, though the Safe Drinking Water Act allows States to seek primacy to implement and enforce these regulations within their own borders.
"Transferring primacy to West Virginia allows the Department of Environmental Protection to apply its local-level expertise while relieving a continuing permitting backlog at the federal level, " they said.
They cite several reasons for intervening. Among them, "West Virginia has a substantial interest in the regulation and management of its own natural resources. After all, local land and water management is 'the quintessential state activity, '"
Also, the state has a direct financial interest. It spent years seeking primacy. "If Petitioners succeed, then all that work will be for naught. Perhaps worse still, Petitioners' challenge to the Final Rule could impede or delay the resolution of important well permit applications, which could in turn undermine the State's broader economic interests by stymying anticipated carbon-sequestration-related projects."
However, the petitioners question the state's competence.
They say the state's proposed program did not meet federal minimum standards and includes key provisions that are beyond EPA's statutory and constitutional authority to approve.
Dave McMahon, co-founder of WVSORO, said, "WVSORO is particularly concerned because the Legislature and DEP have done a miserable job overseeing other similar environmental processes."
The state has more than 12, 000 unplugged gas wells, with 4, 500 of them orphaned — meaning with no current operator. "Pollution from these unplugged wells can cause problems. That threat and even their mere existence sticking out of the ground decreases citizen's property values and uses. So we oppose trusting the oversight of these dangerous wells to the state."
The income tax cuts authorized by the Legislature, McMahon said, means funding for the program will have to come from industry fees imposed by the Legislature, and he's skeptical about that. "Not much gets out of our current Legislature without an industry permission slip. So we are really sure this West Virginia state oversight will be underfunded."
As an example, he notes there are only 23 fund well inspector positions for 75, 000 wells and 20, 000 tanks — and only 18 inspectors working. "If one of these huge sequestration storage fields should leak, the way currently existing gas storage fields sometimes do, theCO2 is not itself poisonous, but it can displace the fresh air that contains oxygen that people need to breathe leading to asphyxiation or suffocation."
Autumn Crowe, deputy director of West Virginia Rivers Coalition, commented, "Adequate oversight of carbon injection is critical to protect the health of West Virginians. Our communities are already overburdened by pollution and the addition of another source of a potentially deadly gas puts our communities at even greater risk. We must ensure that we are prioritizing the health and safety of residents in close proximity to the proposed injection sites."
The petitioners are awaiting a court briefing order to present their legal arguments to the Court in their opening brief.
Sen. Shelly Moore Capito was a leading advocate in the primacy quest and now chairs the Environment and Public Works Committee.
She said on Wednesday, "I have strongly advocated for West Virginia's primacy over Class VI wells for carbon storage because of its potential to contribute to our state's future development and the fact that our environmental leaders know our state best.
"The West Virginia Department of Environmental Protection worked for over 3 1/2 years on their application to receive this authority, " she said, "and that dedication is reflected by both Republican and Democrat Administrations approving their submission. The WVDEP has unparalleled experience with and knowledge of our state's geology and water resources, and I'm confident that they will exercise the authority they have been granted well and in accordance with the law."