Carbon Storage Bill Bars Landowner Nuisance Suits Against Operators

The text as introduced · 1,911 words

89R10869 MZM-F

By: Darby
H.B. No. 2790

A BILL TO BE ENTITLED

AN ACT

relating to liability for capturing and storing carbon dioxide.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 4, Civil Practice and Remedies Code, is

amended by adding Chapter 100B to read as follows:

CHAPTER 100B. LIMITED LIABILITY FOR CAPTURING AND STORING CARBON

DIOXIDE

Sec. 100B.001. DEFINITIONS. In this chapter:

(1) "Captured carbon dioxide" means carbon dioxide

from any source that, through human effort or means, is seized for

the purpose of sequestering the carbon dioxide with the intent of

permanently preventing the carbon dioxide from being released into

the atmosphere, including carbon dioxide that is:

(A) captured from the atmosphere;

(B) stripped, segregated, or divided from a fluid

stream; or

(C) captured from an emissions source, including

from:

(i) an advanced clean energy project as

defined by Section 382.003, Health and Safety Code;

(ii) an electric generation facility; or

(iii) an industrial source of emissions.

(2) "Carbon dioxide" means the chemical compound

composed of one carbon and two oxygen atoms. The term includes:

(A) anthropogenic carbon dioxide;

(B) naturally occurring carbon dioxide;

(C) carbon dioxide captured from the atmosphere;

and

(D) phases, mixtures, and combinations of carbon

dioxide that include:

(i) a substance incidentally derived from

the source materials for or process of capturing the carbon

dioxide;

(ii) a substance added to the carbon

dioxide stream to enable or improve storage of the carbon dioxide;

and

(iii) a substance incidentally captured

with carbon dioxide captured from the atmosphere.

(3) "Claimant" means a party seeking relief, including

a plaintiff, counterclaimant, or cross-claimant, in an action

described by this chapter and who is a land or mineral owner and

party to a written agreement with the defendant related to the

party's land or minerals and the defendant's activities regarding

captured or stored carbon dioxide.

(4) "Defendant" means a person against whom an action

described by this chapter is brought and who is:

(A) an owner or operator of:

(i) a facility used to store carbon

dioxide; or

(ii) a mechanism or instrumentality being

used to transport captured carbon dioxide, including a pipeline or

a tank or vessel carried by motor vehicle, watercraft, or rail; or

(B) a producer of captured carbon dioxide.

(5) "Geologic storage" means the underground storage

of carbon dioxide in a reservoir.

(6) "Geologic storage facility" means the underground

reservoir, underground equipment, injection wells, and surface

buildings and equipment used or to be used for the geologic storage

of carbon dioxide and all surface and subsurface rights and

appurtenances necessary to the operation of a facility for the

geologic storage of carbon dioxide. The term includes any

reasonable and necessary areal buffer and subsurface monitoring

zones, pressure fronts, and other areas as may be necessary for this

state to receive delegation of any federal underground injection

control program relating to the storage of carbon dioxide.

(7) "Legal requirement" means a statute, regulation,

rule, order, judgment, or permit controlling or directing conduct

or the design, construction, or use of a facility or equipment that

was enacted, adopted, promulgated, or issued by the federal

government, an agency of the federal government, a federal court,

this state, an agency or court of this state, or a local government

in this state.

(8) "Reservoir" has the meaning assigned by Section

27.002, Water Code.

(9) "Stored carbon dioxide" means captured carbon

dioxide that is being transported or temporarily or permanently

stored.

Sec. 100B.002. CAPTURED OR STORED CARBON DIOXIDE NOT

ACTIONABLE AS NUISANCE. A claimant may not bring an action against

a defendant on the basis that captured carbon dioxide, stored

carbon dioxide, or a process associated with capturing or storing

carbon dioxide:

(1) is a pollutant;

(2) constitutes a nuisance, including a public

nuisance, under common law or the laws of this state, including

Chapter 125; or

(3) has caused a nuisance-related injury.

Sec. 100B.003. LIMITED LIABILITY FOR INJECTION, MIGRATION,

AND RELEASE OF CAPTURED CARBON DIOXIDE. (a) This section applies

to a civil action for damages for injury to a person or property,

including for interference with a possessory interest or an

ownership right or an injury to crops or an animal:

(1) arising from an event governed by a legal

requirement enacted, adopted, promulgated, or issued for the

purpose of controlling or directing the transportation, capture, or

storage of carbon dioxide to permanently prevent it from being

released into the atmosphere; and

(2) resulting from:

(A) the transmission or injection of captured

carbon dioxide into a geologic storage facility, including an

action for damages caused by seismic activity;

(B) subsurface migration of stored carbon

dioxide, including a claim for trespass or conversion arising from

the subsurface migration of stored carbon dioxide into a pore

space, geologic formation, cavity, void, reservoir, aquifer,

mineral deposit, or other geologic formation; or

(C) captured or stored carbon dioxide being

inadvertently released, including an action alleging environmental

damage caused by the inadvertent release of captured or stored

carbon dioxide into the air or surface water.

(b) A claimant may not recover noneconomic damages in a

civil action described by Subsection (a) unless the claimant

establishes, in addition to other requirements of law, actual

damages and one of the following:

(1) that:

(A) the defendant concealed, withheld, or

misrepresented information relevant to a permitting authority's

decision to grant the defendant a permit to:

(i) transport, capture, or store carbon

dioxide; or

(ii) conduct the process or operate the

equipment or facility being used to transport, capture, or store

carbon dioxide;

(B) the information described by Paragraph (A),

as applicable:

(i) relates to the safety or propriety of

injecting carbon dioxide into the geologic storage facility; or

(ii) is relevant to determining whether the

stored carbon dioxide could migrate or escape in the manner in which

it migrated or escaped;

(C) the permitting authority, in granting the

defendant's permit:

(i) reasonably relied on the information

provided by the defendant; and

(ii) did not receive the relevant accurate

information from another source before granting the defendant's

permit;

(D) the information described by Paragraph (A) is

of sufficient importance that a reasonable person with the

permitting authority's knowledge and experience would consider the

information material to the permitting authority's decision to

grant the permit; and

(E) the permit was granted not more than five

years before the date the carbon dioxide was injected, migrated, or

escaped;

(2) that:

(A) at the time of the event that caused the

damage that is the basis of the action, the defendant was not in

compliance with a legal requirement that governs an aspect of the

defendant's conduct, including conduct regarding the defendant's

equipment or facility, relevant to the event;

(B) the legal requirement is intended to protect

a person or property from the kind of damage that occurred in the

event; and

(C) if the defendant had been in compliance with

the legal requirement, the event would not have occurred; or

(3) that, only if the aspect of the defendant's

conduct, including conduct regarding the defendant's equipment or

facility, that is the basis of the action was not subject to a

permitting process described by Subdivision (1) or a legal

requirement described by Subdivision (2):

(A) the defendant's actions or omissions were

contrary to a standard industry practice for the conduct relevant

to the damage-causing event;

(B) the defendant chose not to comply with the

standard industry practice solely for an economic reason; and

(C) if the defendant had acted in accordance with

the standard industry practice, the damage-causing event would not

have occurred.

Sec. 100B.004. LIMITED LIABILITY FOR INTERFERENCE WITH

ACCESS TO UNDERGROUND MINERALS AND WATER DUE TO STORAGE OF CAPTURED

CARBON DIOXIDE. (a) A claimant may not recover noneconomic damages

in a civil action for a claim that a defendant prevented or impeded

access to, or interfered with the production of, underground

minerals or water due to the storage of captured carbon dioxide in a

geologic storage facility unless the claimant establishes, in

addition to other requirements under the law, actual damages and

that:

(1) the defendant withheld from or misrepresented to

the permitting authority information relevant to the authority

determining if storage of captured carbon dioxide in the geologic

storage facility would prevent or impede the claimant's access to

underground minerals or water or interfere with the claimant's

production of the minerals or water;

(2) the permitting authority, in granting the

defendant's permit:

(A) reasonably relied on the information

provided by the defendant described by Subdivision (1); and

(B) did not receive the relevant accurate

information from another source before granting the defendant's

permit;

(3) the claimant did not know or receive notification

of the proceeding in which the defendant obtained a permit to

establish the geologic storage facility; and

(4) the information described by Subdivision (1) is of

sufficient importance that a reasonable person with the permitting

authority's knowledge and experience would consider the

information material to the permitting authority's decision to

grant the permit.

(b) A claimant who receives compensation, including through

a lease payment, a royalty payment, or the purchase of an easement,

in consideration of the possibility that a geologic storage

facility may prevent or impede access to or interfere with the

production of the claimant's underground minerals or water is not

entitled to recover damages from the owner or operator of the

facility if the facility prevents or impedes access to or

interferes with the production of the claimant's minerals or water.

(c) The economic damages available under this section to a

claimant not barred from recovering damages under Subsection (b)

are limited to:

(1) if the defendant's geologic storage facility

prevents or impedes access to the claimant's underground minerals

or water, the increased cost to access the minerals or water that

results from penetrating or circumventing the geologic storage

facility;

(2) if the defendant's geologic storage facility

interferes with the production of the claimant's underground

minerals or water, the:

(A) increased cost to produce the minerals or

water; and

(B) present value of the minerals or water that

the claimant cannot with reasonable probability produce because of

the interference; or

(3) if the defendant's geologic storage facility

prevents access to and the production of the claimant's underground

minerals or water, the present value of the minerals or water that

the claimant cannot with reasonable probability produce because of

the geologic storage facility.

Sec. 100B.005. EXEMPLARY DAMAGES. In a civil action to

which Section 100B.003 or 100B.004 applies, a claimant may not

recover exemplary damages unless the claimant:

(1) proves the elements described by Section 100B.003

or 100B.004, as applicable; and

(2) meets the requirements for recovery of exemplary

damages under Chapter 41.

Sec. 100B.006. AGREEMENTS NOT IMPAIRED; WAIVABLE BY

AGREEMENT. (a) This chapter may not be construed to impair, amend,

alter, negate, or otherwise affect any right, obligation, or other

term of an agreement.

(b) The provisions of this chapter may be voluntarily waived

by agreement.

SECTION 2. Chapter 100B, Civil Practice and Remedies Code,

as added by this Act, is an exercise of authority under Section

66(c), Article III, Texas Constitution, and takes effect only if

this Act receives a vote of three-fifths of all the members elected

to each house, as provided by Subsection (e) of that section.

SECTION 3. The changes in law made by this Act apply only to

a cause of action that accrues on or after the effective date of

this Act.

SECTION 4. This Act takes effect September 1, 2025.