Carbon Capture Developments: Class VI Primacy In Louisiana And Texas

As energy infrastructure projects ramp up along the U.S. Gulf Coast and beyond, the role of states in holding primary enforcement authority ("primacy") for certain federal programs has taken center stage; this is particularly true for owners and developers seeking approval for Carbon Capture and Sequestration ("CCS") projects. Since 2018, six states have received primacy for the Safe Drinking Water Act's Class VI underground injection control program, which applies to wells used to inject and permanently sequester carbon dioxide underground. Although Texas's Class VI primacy was just approved in November 2025, recent developments in Louisiana's Class VI permitting efforts provide insight into the shifting disputes surrounding energy-infrastructure permits and projects.

States Are Requesting, and Receiving, Class VI Primacy

Since EPA first granted Class VI primacy to North Dakota in 2018, state interest in Class VI primacy has grown. Wyoming became the second state to receive primacy in 2020, followed by Louisiana in January 2024. Given Louisiana's key role in Gulf Coast energy and development, the grant of Class VI primacy to Louisiana positioned the state as a national leader in CCS, leveraging the region's favorable geology and existing energy infrastructure to accelerate projects, while setting a precedent for other states.

Developments in Louisiana since the state's receipt of primacy provide a useful guide for CCS project developers anticipating potential challenges in Texas and other states that recently granted Class VI primacy.

Challenges to State Primacy

EPA's delegation of Class VI primacy to Louisiana prompted swift legal challenges brought by three environmental groups in Deep South Center for Environmental Justice et al. v. EPA. The opening brief, filed in the U.S. Court of Appeals for the Fifth Circuit, alleged that Class VI primacy would divert resources from preferred programming, increase energy costs, impose higher tax burdens, and endanger public health and the environment.

In May 2025, the Fifth Circuit rejected the challenge to Louisiana's Class VI primacy, holding that the injuries alleged by plaintiffs were either not recognized by federal courts or were too speculative and hypothetical and dependent upon the occurrence of a lengthy chain of events before injury might arise. With no injuries to redress, the Fifth Circuit dismissed the challenge for lack of standing.

In West Virginia, environmental groups also challenged the state's Class VI primacy in West Virginia Surface Owners' Rights Organization et al. v. Zeldin before the U.S. Court of Appeals for the Fourth Circuit. The groups argued that the state's alleged failure to enforce regulations pertaining to abandoned oil and gas wells demonstrated an inability to appropriately enforce Class VI well regulations. That challenge remains pending; the Fourth Circuit's current briefing schedule extends through March 2026.

Louisiana Issues Its First Class VI Permit

After successfully defending its Class VI primacy, Louisiana assumed authority over the Class VI regulatory program in early 2024 and began processing the Louisiana Class VI applications that had been pending at EPA Region 6. After a nearly-four year application process, beginning at EPA and moving to Louisiana's Department of Conservation and Energy (formerly, the Louisiana Department of Energy and Natural Resources) (the "Department"), Hackberry Carbon Sequestration received the first Louisiana-issued Class VI permit on September 5, 2025. The permit is now final.

Moratorium on New Louisiana Class VI Applications

Amid a surge in Louisiana Class VI permit applications, in October 2025, Governor Jeff Landry issued an executive order (No. JML 25-119) (the "Order") "suspend[ing] review of any new Class VI applications . . . submitted" to the Department after October 15, 2025. The stated purpose of the Order is "to provide a clear roadmap for citizens and local officials, ensuring that applications for proposed Class VI projects comply with existing Louisiana rules for carbon injection . . . and carbon dioxide pipelines." The Order explains that the pause grants time for Louisiana to cultivate a Class VI application-review process that balances the state's economic interests with health, welfare, and the environment by prioritizing Class VI projects with the most substantial local economic benefits. The moratorium also states that this will ensure transparency and community input, creating a collaborative agency process as well as environmental and safety protections.

Although the Order imposes additional procedures, it does not prohibit the Department from processing pending applications or issuing Class VI permits for applications submitted pre-moratorium. The moratorium has no termination date; it is unclear when the Department may resume accepting new Class VI well applications.

Despite the moratorium, the Order includes numerous statements supportive of CCS, highlighting Louisiana's decades-long CCS history, the industry's multi-billion-dollar economic impact, and the thousands of jobs the industry is expected to create, indicating that CCS will likely remain active in Louisiana.

Related Energy-Infrastructure Litigation

Beyond direct challenges to state permitting authority or individual permits, CCS projects can also face indirect attacks related to supporting infrastructure, non-Class VI authorizations required for project construction or operation, and questions surrounding property rights and ownership, including of pore space.

Coastal Use Permits. Louisiana maintains a specific permitting scheme applicable to energy infrastructure projects within Louisiana's coastal zone in an effort to preserve, restore, and enhance Louisiana's valuable coastal resources. This authorizations, called a Coastal Use Permit ("CUP"), must be secured before project construction. Recently, in Sierra Club et al. v. Louisiana Department of Natural Resources, three Louisiana NGOs challenged a CUP issued to Commonwealth LNG to support construction of a new liquified natural gas plant and export facility on the Calcasieu River in Cameron Parish. The plaintiffs argued that regulators failed to adequately evaluate the facility's local environmental impacts before granting the CUP. A Louisiana state court agreed, vacating the CUP and remanding the decision to the Department to further consider environmental impacts, including cumulative impacts, on nearby low-income and minority communities, as well as the facility's broader environmental and climate effects. On November 18, 2025, the Department issued a revised environmental analysis, concluding that the facility's social and economic benefits outweigh the minimal environmental costs, and reissued the CUP. Further legal challenges have not yet been filed.

Use of Eminent Domain for CCS. The use of eminent domain authority for CCS projects has sparked significant litigation across the country, including in the context of carbon dioxide pipelines. Louisiana is no exception to this trend. Recently, in Save My Louisiana v. State, a coalition of Louisiana residents and local officials sued the state of Louisiana, arguing that statutes giving the Department authority to seize private property for use by for-profit corporations for CCS purposes violate the Louisiana and United States constitutions. Although the plaintiffs also address land seizures for CO₂ pipelines, plaintiffs' primary contention is that Louisiana law guarantees a landowner ownership rights to the pore space beneath the land, and any statute forcing a non-consenting landowner to accept injected carbon into that pore space constitutes an illegal taking of private property, regardless of whether the landowner receives just compensation. The court has not set a briefing schedule yet.

What's Next For the Texas Class VI Program

Louisiana's experience transitioning to Class VI primacy may shed light on the upcoming trends in Texas. With CCS development on the rise in Texas, increased regulatory and citizen engagement with Class VI wells makes Texas a potential next focal point for CCS litigation. Texas's Class VI primacy became effective December 15, 2025. The Railroad Commission of Texas ("RRC") is expected to receive 18 pending Class VI applications that are currently under review at EPA.

Like Louisiana, Texas may face programmatic challenges to its Class VI primacy as well as direct and indirect legal and policy-related¹ challenges to CCS projects. Texas has seen a general rise in challenges to energy infrastructure projects, as oil and gas, wind, solar, and LNG buildouts occur across the state; CCS projects are likely to be no exception.²

Adopting a Proactive Approach to Permitting and Potential Project Challenges

Given the current and changing legal landscape, CCS project developers should consider efforts to anticipate and address potential permitting hurdles, including proactive external affairs efforts and community engagement strategies. While community outreach does not guarantee regulatory approval, early engagement can help mitigate many of the challenges inherent in the permitting process. An informed public that understands the local benefits of CCS projects can meaningfully contribute to a smoother path toward project realization.

Footnotes

1. Texas regulators have weighed in on recent CCS project approvals.

2. Recent news about seismicity, pipeline leaks, and Class II wells unrelated to CCS projects likewise have implications for the industry.

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