HB2790 - Relating to liability for capturing and storing carbon dioxide.

  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 fro [Text truncated for display. 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