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On November 12, 2025, the U.S. Environmental Protection Agency (EPA) approved Texas's application for Class VI UIC primacy, giving the Texas Railroad Commission (RRC) primary enforcement authority over CO₂ sequestration wells statewide and making Texas the sixth state with Class VI primacy. The final rule will be effective December 15, 2025, at which point RRC—not EPA—will be the primary Class VI permitting authority in Texas. This shift has significant implications for permitting timelines, litigation risk, and regulatory strategy for carbon capture and storage (CCS) projects in Texas.
Background: EPA Delegates Class VI Primacy to Texas
On November 12, 2025, EPA announced a final rule approving Texas's application to administer the Class VI UIC program under the Safe Drinking Water Act (SDWA). Texas is now the sixth state with Class VI primacy, joining Arizona, Louisiana, North Dakota, West Virginia, and Wyoming.
The RRC has been developing its Class VI program with EPA Region 6 since 2021 and reports that it has already received 18 applications, supported by a dedicated "Special Injection Permits" unit and a recent $1.93 million EPA grant. In its primacy application, Texas targeted issuance of about 25 Class VI permits within the first two years.
Who Does What Now: RRC, EPA, and TCEQ
Texas Railroad Commission
Recent Texas statutory and regulatory changes—including HB 1284 and amendments to 16 TAC Chapter 5—give the RRC exclusive jurisdiction over onshore and near-offshore injection and geologic storage of CO₂ in Texas, regardless of whether wells are newly drilled or converted from other classes. Under this framework, the RRC issues and enforces Class VI well permits and associated geologic storage facility approvals, manages compliance and enforcement, and retains jurisdiction over Class II EOR injection and related CO₂ storage incidental to EOR.
Texas Commission on Environmental Quality (TCEQ)
TCEQ continues to handle non-UIC permits, including air permits (NSR/PSD and Title V) for capture, compression, dehydration, and other surface equipment, as well as surface water and wastewater issues, including discharges from capture facilities. TCEQ also manages solid and hazardous waste from capture and processing residuals and oversees broader public participation requirements, which NGOs and community groups are already using as advocacy tools.
EPA
Primacy does not mean EPA disappears. The agency continues to oversee Texas's UIC program through periodic program reviews and retains authority to withdraw primacy if Texas fails to maintain SDWA-equivalent protections. EPA also holds independent enforcement authority under the SDWA, including emergency powers to address imminent and substantial endangerment, and remains central to federal incentives and approvals—notably the 45Q tax credit requirements for secure geologic storage and DOE/IIJA-funded CCS projects.
Permitting and Regulatory Implications
Timing and Sequencing
The RRC's primacy application projects a 6-month review to issue a permit to drill or convert, and another 6-month period to authorize injection once all required information is submitted, at least under expected staffing levels. Actual experience will depend on how quickly RRC's new program moves through its first wave of applications and how contentious those dockets become.
From a practical standpoint, eliminating duplicative EPA permitting should streamline Class VI approvals for Texas projects, especially relative to non-primacy states where EPA backlogs remain significant. However, developers will need to carefully align RRC Class VI timelines with TCEQ air permitting and with financing milestones tied to 45Q and DOE grants.
Early mis-sequencing can push projects out of key tax-credit windows or offtake-start deadlines. With 18 applications already in the queue and more expected, early and complete filings may receive more favorable timing than later, contested applications.
Transition of Existing EPA Applications
Because RRC staff have been reviewing Class VI applications alongside EPA Region 6 since 2021, many pending projects are already well known to the Commission. Developers with EPA-filed applications should expect formal transfer of pending applications and records to the RRC once the rule is effective, along with gap analyses to reconcile EPA application materials with specific Texas requirements under Chapter 5, such as financial assurance, monitoring and reporting provisions, and emergency response planning. There is also potential for "re-opening" of issues if RRC interprets Texas statutes more conservatively than EPA staff did during pre-delegation review. Projects that assumed EPA-centric timelines should revisit their schedules and covenants.
Key Procedural Steps
Several stages of the RRC process may generate disputes or delays. Early on, staff will closely review whether the application fully addresses the area around the wells, nearby faults, and any old or abandoned oil and gas wells that could create pathways for movement. The Commission is also likely to ask for substantial data and modeling on two fronts: (1) the potential for injection-related seismic activity, and (2) how the injected CO₂ will move over time and how the site will be monitored and managed after injection stops.
Public notice and comment procedures will present another flashpoint. For each Class VI permit, the RRC will have to identify which nearby landowners, local governments, and other stakeholders qualify as "affected persons" with the right to request a hearing. The Commission will also need to show that it has provided meaningful notice and an opportunity for communities near proposed storage sites, including environmental justice communities and residents with limited English proficiency to engage. Advocacy groups raised concerns about these issues during the primacy rulemaking, and they are likely to continue pressing them in individual permit proceedings.
Permit conditions themselves may become focal points both for applicants concerned about cost and feasibility, and for opponents focused on protectiveness, particularly regarding monitoring requirements, financial assurance, injectivity limits, and corrective action obligations.
Litigation and Enforcement Risk
The shift to RRC primacy creates new litigation and enforcement dynamics that developers need to navigate carefully. Final RRC decisions on Class VI permits will be subject to administrative contested-case hearings, followed by judicial review in state district court.
Texas statutes generally impose relatively short windows—often in the 30-day range—to seek judicial review after a final order, and courts will review permits on a substantial-evidence standard limited to the administrative record. This means technical teams should assume their reports, responses to comments, and testimony will be scrutinized in litigation, making record-building essential from day one.
EPA retains significant oversight and enforcement leverage even with primacy delegation. Periodic program reviews could lead EPA to require Texas to tighten implementation, potentially affecting existing or pending permits. EPA and DOJ can still bring SDWA enforcement actions where state enforcement is absent or inadequate, especially in cases of alleged endangerment of underground sources of drinking water.
Enforcement exposure will now come from multiple directions simultaneously. The RRC will conduct inspections and issue notices of violation, administrative penalties, and permit modifications, suspension, or revocation. TCEQ will enforce violations related to air, water, and waste at capture and compression facilities. The Texas Attorney General may bring civil actions seeking penalties and injunctive relief, while EPA and DOJ retain authority for SDWA, Clean Air Act, or Clean Water Act enforcement in egregious or multi-state cases.
Well-structured compliance programs, incident response plans, and privilege protocols will be critical to managing this multi-agency risk.
Strategic Considerations and Action Items
For developers, operators, and investors evaluating CCS opportunities in Texas, several practical steps are worth considering now:
- Map the full regulatory stack early. Identify all RRC and TCEQ approvals, along with federal tax-credit and funding requirements, at the conceptual stage—not after site control and offtake contracts are locked in.
- Engage RRC early and often. Use pre-application meetings to align expectations on AoR, modeling, seismic risk, and monitoring plans. Clarify how the Commission will treat projects that began under EPA review, and whether prior EPA feedback will be honored.
- Treat the permit file like a litigation record. Build a robust technical record that clearly demonstrates the protectiveness of underground sources of drinking water and addresses likely attack points, including legacy wells, seismicity, environmental justice concerns, and plume migration. Respond comprehensively to comments and expert reports from opponents.
- Develop an integrated community strategy. Coordinate Class VI permitting with TCEQ's Public Involvement Plan and other public participation processes. Consider voluntary outreach—community meetings, translated materials, and accessible summaries—to mitigate criticism of "paper-only" engagement and build local support.
- Prepare for multi-agency oversight and enforcement. Establish internal governance, document management, and incident-response protocols tailored to Class VI monitoring, reporting, and emergency requirements. Consider privileged compliance audits or mock inspections focusing on RRC and TCEQ expectations.
- Evaluate portfolio allocation across states. Texas now joins other primacy states where state-led programs may move faster than EPA-led permitting. Compare Texas's emerging track record and regulatory climate with options in Louisiana, Wyoming, North Dakota, West Virginia, Arizona, and non-primacy states when deciding where to place first-mover capital.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
