The McLean County state’s attorney’s office has issued a legal opinion saying the county has only limited authority to regulate carbon sequestration wells.
Sequestration takes carbon dioxide produced by a fossil fuel plant, ethanol plant, or other industrial process, liquifies it under pressure, and pumps it deep underground for long-term storage to remove it from the atmosphere. It’s one of the strategies to address climate change.
Trevor Sierra, the office's first assistant state’s attorney for the civil division, authored the memo.
“It is my opinion that the County of McLean has the authority to require Class VI injection wells secure a special-use permit for statutory zoning purposes, but may not exclude such activities from its boundaries,” wrote Sierra.
Activists from the group Illinois People’s Action have spoken to the county board's land use committee and the zoning board of appeals to register concerns about the technology. They worry about the safety of pipelines that can rupture, and the potential for groundwater contamination if the carbon dioxide does not stay below bedrock layers where it is pumped.
So many people turned out to the zoning board meeting Tuesday, it could not be held in a room with limited space, postponing the hearing until Oct. 24. The issue has been under consideration since last spring.
And it is an area of growing interest statewide as firms such as Navigator and Wolf Carbon Solutionsseek Illinois Commerce Commission [ICC] approval for pipelines to transport CO2.
The opinion is dated Sept. 28 and expands on a statement Sierra made to the land use committee in early September.
Sierra acknowledged several issues have surfaced as the county considered CO2 well rules, including protection of the Mahomet Aquifer, public safety, and the effect on nearby property. Those issues have energized activists and raised eyebrows among some public officials.
“Geological sequestration of carbon dioxide is a relatively recent technological development, and as such, there is a dearth of legal authority addressing a county's authority to enact regulations on this specific issue,” wrote Sierra.
The federal Environmental Protection Agency began regulating Class VI injection wells in 2008. Some rules governing pipeline construction to carry liquid CO2 at high pressures are still in development at the federal level. Federal authorities do allow individual states to create their own regulations for sequestration wells, according to Sierra. Only Wyoming and North Dakota have done so.
He based the opinion that McLean County can only require a special-use permit and set standards for it on statutes, regulations, and court opinions. He said the Illinois General Assembly delegates authority to the state Environmental Protection Agency (IEPA) when lawmakers enact a "comprehensive scheme of regulation." And when the General Assembly has done that, "there is no room for additional regulation by government units," said Sierra.
The Illinois Groundwater Protection Act, he wrote, addresses comprehensive regulation in this case. Several advisory groups exist to help the IEPA form rules: the Interagency Coordinating Committee on Groundwater, the Groundwater Advisory Council, and the Mahomet Aquifer Council, but the IEPA has the final decision.
“The County does not have authority to enact an ordinance for the protection of the Mahomet Aquifer. Absent any authority to impose such regulation, an ordinance restricting sequestration wells for the protection of the aquifer would likely be invalidated if challenged,” said Sierra.
Counties can "regulate and restrict the location and use of buildings, structures, and land," he said, "to establish building or setback lines" in unincorporated areas of a county through zoning rules, according to state code regulating counties.
Sierra cited a case in which courts upheld a Kendall County requirement for a special-use permit for strip mining because it had a “substantial relation to public health, safety and welfare."
Courts have tossed out county ordinances that conflict with other statutes, including one that required tougher standards than the state had for reclaiming strip-mined land, he said, adding local units of government can’t wholly exclude a category of business through zoning. Some examples of failed attempts to do that have involved outdoor movie theaters, concrete mixing plants, trailer coach parks, shelter care homes, off-premises signs, and home childcare facilities.
McLean County’s proposed guidelines include:
- A requirement that wells cannot be within 1,500 feet of an occupied home, livestock shelter, commercial or manufacturing building or a school or community building, a 500-foot expansion over rules for oil and gas drilling.
- Lighting at the well must be shielded to prevent glare "substantially beyond the boundaries of a CO2 facility."
- A requirement for the zoning permit applicant or well owner to work with local fire and emergency management agencies to both develop and fund emergency response plans.
