La. legal showdown may preview national battle over hydrogen

By David Iaconangelo | 11/16/2022 07:05 AM EST

A lawsuit over a planned project underscores an emerging nationwide fight over carbon dioxide storage, pipelines and the environmental effects of hydrogen.

An Air Products and Chemicals Inc. hydrogen production facility in Geismar, La.

An Air Products and Chemicals Inc. hydrogen production facility in Geismar, La. Image courtesy of Air Products and Chemicals, Inc.

The developer of a $4.5 billion hydrogen project in Louisiana is in a legal battle with local lawmakers in a case that analysts say could preview conflicts around the country.

Air Products and Chemicals Inc., the developer, announced a year ago that it would build its sprawling Louisiana Clean Energy Complex across multiple parishes in the Baton Rouge area. One site would make hydrogen out of natural gas, while capturing up to 95 percent of the resulting carbon dioxide emissions — a process characterized as “blue” production.

The captured carbon would then be piped into a permanent storage facility located deep beneath Lake Maurepas, a destination for local sportspeople and commercial fishing that also borders a protected swamp.


The plans drew enthusiastic backing from Louisiana’s Democratic governor, John Bel Edwards, who praised the project as “a clear demonstration of our ability to grow the Louisiana economy while lowering the carbon footprint of industry.” State climate planners say hydrogen and carbon capture systems are indispensable for scaling greenhouse gas emissions down to net zero by 2050, as called for in a 2020 executive order from Bel Edwards.

But this October, the council of rural Livingston Parish threw Air Products’ plans in doubt by approving a one-year moratorium on well-drilling and seismic testing on its territory. That affected surveying activities that the company had begun in order to better understand the geology of its carbon storage site.

Council members say the moratorium will provide time for local review of the project and cite the need to prevent pollution of the parish’s freshwater aquifers and Lake Maurepas’ ecosystems.

“Everybody feels like it was a backdoor deal, it was forced down our throats, we had no say-so at all. And you’re doing it in one of the most important things in our parish, which is our waterways and our lake,” said Jeff Ard, one of the council members who voted in support of the moratorium.

On Oct. 18, Air Products sued the parish in U.S. District Court, arguing that the moratorium was preempted by state and federal law and demanding a permanent injunction against its enforcement.

Art George, an Air Products spokesperson, cited one council member’s public comments expressing doubt about the legality of the moratorium and called the parish’s decision “disappointing.”

“This project is critical to Louisiana’s clean energy transition and preserving jobs in Louisiana as it makes the transition from traditional energy sources to cleaner ones,” he said in an email, adding that “we are pursuing our legal rights in court to have [the moratorium] declared invalid.”

The moratorium may only be the beginning of local opposition.

Livingston and its neighbor, St. Helena Parish, have also passed ordinances barring Class VI injection wells used to store CO2 — something that Air Products will likely seek to drill in later stages of development, although its lawsuit did not address the topic. Louisiana environmentalists say they are preparing to contest permits for carbon pipelines sought by Air Products and other energy companies in the state.

The case underscores an emerging nationwide fight over carbon dioxide storage, pipelines and blue hydrogen.

In several Midwestern states, planned carbon pipelines are being targeted by local landowners and climate activists (Energywire, Nov. 3).

Currently, the U.S. has one hydrogen production site that captures CO2 in high volumes to be considered “blue” by some researchers — Air Products’ facility in Port Arthur, Texas.

But a wave of new proposals for hydrogen and carbon infrastructure is likely on the way. Tens of billions in federal funds, along with new and expanded tax credits, were in the bipartisan infrastructure law and Inflation Reduction Act to help spark construction of hydrogen projects across the country.

New blue hydrogen projects, and associated carbon storage sites, could encounter similar pushback as has occurred in Louisiana, predicted Michael Gerrard, executive director of Columbia University’s Sabin Center for Climate Change Law.

“Local opposition is extremely consequential. It often gets in the way of the timeline for development. And it can be a real impediment to projects,” he said.

“The question would be: do these local bans get in the way of the overall enterprise?” asked Gerrard.

Some environmentalists have rejected blue hydrogen, along with carbon capture and storage more generally, as “false solutions” for climate change. They often cite a study published last year that found the use of blue hydrogen could be worse for the climate than burning natural gas (Energywire, Aug. 16, 2021).

Bob Howarth, an ecology and earth systems scientist at Cornell University who co-authored that study, said residents of Livingston Parish were “right to be wary” of Air Products’ plans.

“To the extent that local towns have the authority and power to protect themselves from carbon dioxide storage from blue hydrogen, I would encourage them to use that power,” Howarth added.

The U.S. Army Corps of Engineers, the Environmental Protection Agency, and the Louisiana Department of Natural Resources did not comment on whether federal and state law should preempt the Livingston Parish moratorium, as Air Products has argued in its lawsuit.

Louisiana’s legislature and the federal Safe Drinking Water Act have granted the state’s energy, conservation and wildlife authorities exclusive authority over permitting and regulation for the geological surveys that Air Products wants to undertake, according to the company’s lawyers.

‘We’re getting no benefits’

Louisiana has few immediate technological options for addressing the bulk of its emissions. Sixty-six percent of them come from the industrial sector, almost four times more than for the U.S. as a whole, according to Louisiana’s climate action plan.

Created by a task force of industry representatives and state officials, the plan calls for an apparently straightforward remedy to cut emissions: build renewables to clean up the grid, then electrify heavy industries’ equipment — or, if a process can’t be easily electrified, use clean hydrogen or carbon capture systems.

The document’s endorsement of blue hydrogen and carbon capture divided the task force, which delivered its findings to the governor in February. Multiple environmentalist and university-academic members of the task force said those technologies amounted to little more than greenwashing and should be discarded from the plan’s list of strategies.

The action plan concluded that state regulators and natural resource officials should draw up and enforce a net-zero standard for heavy industries. The state, in conjunction with manufacturers and federal officials, should launch demonstrations of hydrogen, identify potential sites for carbon storage and carry out feasibility studies for future carbon pipelines, it said.  

“[T]hese technologies are an important part of the overall strategy for Louisiana reaching its climate goals based on our state’s GHG emissions profile,” wrote Patrick Courreges, communications director for Louisiana’s Department of Natural Resources, in an email.

“Obviously, policies at the State and Parish level can impact the ability of our State to reach these goals. So we, at all levels of government, need to work towards finding a balance that addresses legitimate concerns that local government and citizens may have while still allowing for clean hydrogen and carbon sequestration,” he added. “We believe both clean hydrogen and carbon sequestration can be done safely and in a manner that is protective of the environment; and we are looking to support that safe and protective deployment.”

State governments have stepped in to assert their authority in the past when towns have tried to restrict energy production of various kinds, including hydraulic fracturing and renewable electricity, noted Gerrard, of the Sabin Center.

It wouldn’t be unreasonable to expect states to try to override towns seeking to block new hydrogen and carbon storage projects, he said. “If a town bans activity in a state that generally wants it, it would not be surprising to see the state come in and preempt that.”

Louisiana officials have so far supported Air Products’ project by approving permits.

Last year, the Louisiana State Mineral and Energy Board granted Air Products the right to inject CO2 into storage reservoirs on a 122,000-acre property beneath Lake Maurepas, in exchange for payments to the state.

Ard, the council member, says his parish was never consulted about the project.

“A lot of commercial fishermen go catfishing and crabbing in that lake. They make a living in there. It’s also a big recreational lake,” he said. “All of this is going to be impacted — with zero communication to the local government.”

His parish’s lawyers are trying to get Air Products’ case thrown out. On Oct. 28, the parish filed a motion to dismiss, arguing that the company did not demonstrate that it had sufficient standing to sue.

Still, Ard was pessimistic about his parish’s chances in court.

“I personally feel like we [were] too late to the fight. To me, it’s like showing up in the fourth quarter and you’re already down by 30 points. It would take a miracle for us to be able to just stop it. A lot of the money’s already been spent,” he said.

“The next parish over is where they’re going to build the [hydrogen production] facility at. They’re going to get all the jobs and tax money. … To me, all the danger’s on us and we’re getting no benefits. … I do feel at some point we have to step back and say, ‘OK, if we can’t stop this, we’re going to have to go into negotiations with these people to get money.'”

‘A lot of good geology’

Federal agencies have concluded those types of negotiations between companies and local communities may often be the best outcome, especially if developers undertake them early on.

In September, the Government Accountability Office examined several cases where carbon capture and storage companies had canceled their plans amid a local outcry. The GAO largely attributed those failures to a lack of community engagement.

Some critics of blue hydrogen and carbon capture, however, say that conclusion misses the real problem: the nature of the technologies.

Carbon capture and hydrogen made with fossil fuels are “expensive distractions to clean energy and won’t help Louisiana reach our climate goals,” said Darryl Malek-Wiley, a senior organizer at the Sierra Club’s Louisiana chapter, in a statement last year after the Air Products announcement.

“I don’t think that they can fix via a PR campaign or public outreach the technical problems,” Malek-Wiley added in an interview.

He recalled the 2020 rupture of a CO2 pipeline in Mississippi that led to the hospitalization of at least 45 people and prompted the Biden administration to draw up new safety rules (Energywire, May 27). CO2 can cause serious injuries or even death by displacing oxygen in a given space, although it isn’t toxic.

“That’s what they want to put under the lake [Maurepas],” said Malek-Wiley. “If it was a leak, it wouldn’t necessarily impact people, but it would impact the animals, all the fish and crabs and shrimp.”

Supporters of carbon capture say pipelines carrying the greenhouse gas have operated in the United States without incident for years.

Many international energy and climate modelers have also included carbon capture infrastructure as important for reaching net-zero emissions, said Xan Fishman, director of energy policy and carbon management at the Bipartisan Policy Center.

“All the climate modeling shows that there is a role and a need for carbon capture. And along with carbon capture comes the need to utilize it or store it,” said Fishman.

One example of such modeling is last year’s Net-Zero America report, led by Princeton University researchers, which mapped out multiple pathways to a net-zero United States in 2050.

It concluded that the United States may need to transport twice as much CO2 by pipeline in 2050 as it currently does for oil.

Somewhere in the range of 900 million to 1.5 billion metric tons of CO2 would need to be stored away every year by then, the report found. By comparison, the United States’ entire industrial sector emitted 1.37 billion metric tons last year, according to the U.S. Energy Information Administration.  

Most of the carbon dioxide would likely be stored in sites on the Texas Gulf Coast, but multiple other regions of the United States would also become hubs of carbon sequestration, said the report’s authors.

“The good news is there’s a lot of good geology across the United States for carbon sequestration,” said Fishman.

“In general, the goal is to get to net zero as efficiently as possible,” he added. Without carbon capture and sequestration, “it’s just going to be a lot more expensive to get there.”