A challenge brought against the Environmental Protection Agency concerning four Class VI injection well permits issued to FutureGen Industrial Alliance in August 2014 has been dismissed by a panel of judges of the Seventh Circuit Court of Appeals. The permits in question would have allowed the FutureGen Alliance to construct and operate four wells to inject carbon dioxide captured from the FutureGen 2.0 carbon capture and storage project into the Illinois Basin’s deep saline Mount Simon Formation. They were the first such permits issued in the United States.
A petition for review of the permits was filed with the court immediately by DJL Farm LLC, Andrew Leinberger Family Trust, and William and Sharon Critchelow, landowners near the proposed wells. “All Petitioners own land within the area of review (“AoR”) and are directly injured by the Permit Decisions and Opinion,” the request for review says.
The challenge further states that “a CO2 leak would impede their aesthetic and recreational enjoyment of their house and yard and pollute their subsurface property. The other Petitioners own farmland with borders less than 0.2 mile from the Plume, own water, oil and natural gas wells on their land, and would be harmed by a CO2 leak via crop damage and pollution of their subsurface property, as well as the aesthetic enjoyment of their non-crop land.”
However, in January 2015, the Department of Energy pulled funding for the FutureGen 2.0. Over the course of the next year, an alternate source of funding was sought, but not found and on Feb. 2, 2016, the alliance submitted a request to the EPA to advance the expiration of the permits, which had an initial end date of May 7, 2016.
Because the permits are now expired, the EPA and FutureGen Alliance sought to have the case against the permits dismissed. “The EPA and FutureGen submit that because the challenged permits are expired, there is no meaningful relief we could award to petitioners,” the Feb. 23 decision says.
The petitioners however, argued that the case should still be heard, “because it is not clear that the permits cannot be transferred, sold, reissued, or used as a basis, along with the Board’s opinion, for issuing new permits for the same project in the same location.”
The concluded, however, that “no entity can construct or operate injection control wells near [the petitioners] land without submitting a new application for a permit and completing the regulatory process. Because the challenged permits are no longer in effect and cannot be reissued absent new regulatory proceedings, there is no relief that we can grant to petitioners,” the decision says.
If a future project is to apply for new permits down the line, or if FutureGen 2.0 is reincarnated, the petitioners would then be able to request a review of those new permits.
