On June 9, 2025, EPA issued a prepublication version of the proposed rule granting Class VI underground injection control (“UIC”) primary enforcement authority (“primacy”) to Texas.  Class VI UIC wells are used for the injection and permanent geologic sequestration of carbon dioxide. Texas first applied for Class VI primacy in December 2022 and currently holds primacy over all five other classes of UIC wells.  Texas becomes the sixth state EPA has proposed for Class VI primacy. 

Current applicants seeking authorization for permanent geologic sequestration of carbon dioxide in Texas must obtain both Class VI authorization from EPA and a companion permit from the Railroad Commission of Texas (“RRC”).  Once granted primacy, however, applicants in Texas will require only a single, state-issued Class VI permit for Class VI injection wells in the state. When the proposed rule is published in the Federal Register, EPA will accept public comments submitted within 45 days.  EPA plans to hold a virtual public hearing on the proposed grant of primacy on July 24.  Assuming no change in EPA’s proposal occurs as a result of public input, the final grant of primacy can be expected within approximately two months after the close of the public comment period.  

EPA’s decision to grant Texas primacy is expected to substantially streamline and expedite carbon capture and sequestration (“CCS”) permitting in the state, making Texas an attractive location for new projects and relieving some of the administrative hurdles for CCS projects currently under development.  Following the delegation of primacy, Texas Class VI applications currently pending before EPA Region 6 will automatically transfer to the RRC for application processing and permit decisions.    Since the RRC has been engaged in a parallel review process with EPA, this transfer is not expected to impact the RRC’s review of Class VI applications.

The decision to propose granting Texas primacy comes on the heels of a May 16, 2025, Texas Supreme Court opinion confirming that, absent an agreement otherwise, the surface owner owns underground pore space in Texas even if that pore space is encased in salt or another solid mineral.  That decision is Myers-Woodward, LLC v. Underground Services Markham, LLC, Case No. 22-0878 (Tex. 2025).  

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Baker Botts’ cross-disciplinary CCS practice group has deep experience in the permitting of CCS projects and looks forward to working with you to evaluate the impact of these developments on projects in Texas and beyond.

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