Outlook on the New Administration: What’s Next for CCS Permitting?

Despite the Biden administration’s public support for carbon capture and sequestration (“CCS”), we saw neither faster CCS permit approvals from the U.S. Environmental Protection Agency (“EPA”) nor a significant push towards state primary enforcement authority (“primacy”) during the former president’s tenure. CCS permitting is regulated under the federal Safe Drinking Water Act’s (“SDWA”) Underground Injection Control (“UIC”) program, and Class VI UIC wells are used for the permanent geological sequestration of carbon dioxide necessary for the CCS industry. The second Trump administration, like the first one, appears poised to fast-track state primacy efforts, and on February 18, 2025, EPA Administrator Lee Zeldin approved a final rule granting primacy to West Virginia. We expect the Trump administration and the current Congress to continue to support CCS, but without the Biden administration’s emphasis on environmental justice concerns.

Public Support, but Few Results

Class VI wells are used to inject carbon dioxide into underground rock formations for the purpose of long-term storage, also known as geological sequestration. Geological sequestration through UIC Class VI wells prevents carbon dioxide emissions from industrial sources from reaching the atmosphere and is essential for the CCS industry. CCS is increasingly seen as critical not just for corporations but also for the global community to achieve targeted greenhouse gas emissions reductions.

Early in his term, President Joe Biden emerged as a supporter of CCS, with several initiatives aimed at boosting CCS development. For example, the Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, established a number of programs aimed at increasing hydrogen production from clean sources—including fossil fuels through the use of CCS—and authorized $2.5 billion for large scale CCS projects. Shortly thereafter, in February 2022, the Biden administration announced a slew of initiatives aimed at supporting CCS technologies, and his administration’s Council on Environmental Quality released guidance designed to assist agencies with CCS regulation and permitting. The administration signaled additional support for CCS in the landmark August 2022 Inflation Reduction Act, which increased the value of the 45Q tax credit that provides monetary incentives for CCS. However, despite this public support for CCS, CCS permitting has languished at the federal level, with no meaningful improvement in Class VI permitting timelines from EPA. To date, only eight Class VI permits have ever been issued by the EPA, and a whopping 161 applications remain under review.

State Primacy

The UIC program contains a mechanism by which the EPA can grant primary enforcement authority over the program to the states. Many states already have primacy over other classes of UIC wells, and history has shown that states have been able to implement faster permitting timelines. Shortly before leaving office, on January 17, 2025, the Biden-era EPA published a pre-publication version of its final rule granting primacy to West Virginia, and newly confirmed EPA Administrator Lee Zeldin signed the final rule on February 18, 2025. The grant of primacy makes West Virginia the fourth state—after North Dakota (2018), Wyoming (2020), and Louisiana (2023)—to gain authority to issue Class VI well permits in lieu of the EPA. This decision comes after nearly three years of coordination between the West Virginia Department of Environmental Protection (“WVDEP”) and the EPA to align the state’s program with federal standards. West Virginia indicated in its application that it anticipates issuing up to four Class VI permits within the first two years of the program—a rate that would substantially outpace the EPA.

During the first Trump administration, the EPA approved Class VI primacy for both Wyoming and North Dakota. Though the Biden administration’s EPA also approved two state requests for primacy during its term, the Biden EPA imposed certain environmental justice-related (“EJ”) provisions as a condition of primacy on Louisiana and West Virginia. EJ was a focus of the Biden administration following several Executive Orders aimed at amplifying the role of EJ in the federal government and in environmental permitting decisions. In line with these initiatives, the pre-publication version of West Virginia’s Class VI UIC program put out by the Biden administration included several EJ provisions following a Memorandum of Agreement between the EPA and WVDEP. And, just as how it approached Louisiana’s application for Class VI primacy, this MOA would have required EJ reviews as part of a Class VI permit application and that WVDEP conduct EJ reviews of applications using the EPA’s “EJScreen” tool. Louisiana’s grant of primacy, also approved during the Biden administration, contained similar EJ-related provisions. However, the pre-publication version of the final rule approving West Virginia primacy issued by the Trump administration on February 18, 2025, quietly removed all references to and provisions regarding EJ. As we previously discussed, on his first day in office, President Donald Trump signed Executive Orders revoking all prior EJ-related Executive Orders and abolishing EJ-related offices and initiatives within the federal government, designed to limit or remove EJ considerations in federal environmental reviews.

CCS Permitting in the New Administration

The Trump administration’s actions to date send clear signals that EJ will no longer play a role in primacy approvals. Absent independent EJ-related requirements in state regulations, EJ considerations will not have a role in Class VI permitting for the foreseeable future. Though only four states have been granted primacy so far, we expect that both the frequency and pace of primacy approvals will increase under the new administration. In a statement alongside his approval of the final rule granting primacy to West Virginia, Zeldin announced that he is directing the EPA’s Office of Water to “fast-track the agency’s review and approval of state primacy applications” under the SDWA. Moreover, other members of the Trump administration, including Department of Interior Secretary Doug Burgum, lauded West Virginia’s primacy approval and expressed their support for continued permitting reform and state authority. Burgum’s continued support for CCS will also be critical to ensuring that any rules for permitting CCS projects on federal lands are also streamlined.

The first Trump administration was quick to take action on state primacy applications. North Dakota’s application, the first state to be granted primacy, sat in limbo for nearly four years under the Obama administration before winning proposed approval shortly after President Trump took office during his first term. The first Trump-era EPA also approved Wyoming’s primacy application in just eight months—a timeline much shorter than the nearly three years it took the Biden administration to approve Louisiana’s application (although the Biden-era EPA generally appeared to move faster approving West Virginia’s application). Eight other states, including Oklahoma, Arizona, Texas, and Utah, have pending primacy applications. Arizona, which the EPA primacy website lists as being in the proposed rulemaking phase, appears next in line to receive primacy.

Congress under the new administration is also pursuing additional ways to spur and support CCS permitting. In a recent Senate Environmental and Public Works Committee hearing, lawmakers stressed the need to speed up permitting for other components of CCS projects, like pipelines and capture devices, and even raised potential exemptions under the SDWA for CCS projects. These changes may be accelerated by President Trump’s appointment of officials who have long been supportive of CCS projects. As a Congressional representative, Zeldin sponsored a bill designed to help businesses finance CCS technology, and Burgum has been an outspoken proponent of CCS efforts, approving eight Class VI permits during his tenure as governor of North Dakota—the same number of Class VI permits ever issued by the EPA since the beginning of the UIC program in 2010.

Key Takeaways

We expected the second Trump administration to be at least as supportive of efforts to expedite CCS permitting and state Class VI primacy applications as the first. Though the Biden administration provided strong support for CCS projects through increased funding and tax credits, the results of this support never seemed to fully materialize, and very little was done to improve the timing for issuing Class VI permits or approving state primacy under the Biden-era EPA. While EJ may no longer be a focus for the current administration, CCS project developers should still expect scrutiny from permit writers and other interested parties on corrosion risks following issues discovered last year at a CCS project in Illinois. Separately, the current EPA may also be more receptive to feedback on how to improve the existing Class VI regulations and optimize the permitting process. While the data set remains small, past experience with the Class VI permitting process suggests that it could benefit from greater clarity around monitoring requirements, exploring avenues other than aquifer exemptions in the permitting process for a more efficient review of risks to aquifers that are not potable or that cannot otherwise serve as sources of drinking water, and more flexibility relating to who can hold the permit when the operator and owner of the Class VI facility are different, amongst other areas.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.