Texas 2023 - 88th Regular

Texas House Bill HB4557 Compare Versions

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Version 2 (New)

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1	1	88R23511 JES-F
2	2	By: Darby, Leach, Bonnen, Guillen, Landgraf H.B. No. 4557
3	3	Substitute the following for H.B. No. 4557:
4	4	By: Leach C.S.H.B. No. 4557
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to liability for capturing and storing carbon dioxide.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 4, Civil Practice and Remedies Code, is
12	12	amended by adding Chapter 100B to read as follows:
13	13	CHAPTER 100B. LIMITED LIABILITY FOR CAPTURING AND STORING CARBON
14	14	DIOXIDE
15	15	Sec. 100B.001. DEFINITIONS. In this chapter:
16	16	(1) "Captured carbon dioxide" means carbon dioxide
17	17	from any source that, through human effort or means, is seized for
18	18	the purpose of sequestering the carbon dioxide with the intent of
19	19	permanently preventing the carbon dioxide from being released into
20	20	the atmosphere, including carbon dioxide that is:
21	21	(A) captured from the atmosphere;
22	22	(B) stripped, segregated, or divided from a fluid
23	23	stream; or
24	24	(C) captured from an emissions source, including
25	25	from:
26	26	(i) an advanced clean energy project as
27	27	defined by Section 382.003, Health and Safety Code;
28	28	(ii) an electric generation facility; or
29	29	(iii) an industrial source of emissions.
30	30	(2) "Carbon dioxide" means the chemical compound
31	31	composed of one carbon and two oxygen atoms. The term includes:
32	32	(A) anthropogenic carbon dioxide;
33	33	(B) naturally occurring carbon dioxide;
34	34	(C) carbon dioxide captured from the atmosphere;
35	35	and
36	36	(D) phases, mixtures, and combinations of carbon
37	37	dioxide that include:
38	38	(i) a substance incidentally derived from
39	39	the source materials for or process of capturing the carbon
40	40	dioxide;
41	41	(ii) a substance added to the carbon
42	42	dioxide stream to enable or improve storage of the carbon dioxide;
43	43	and
44	44	(iii) a substance incidentally captured
45	45	with carbon dioxide captured from the atmosphere.
46	46	(3) "Claimant" means a party seeking relief, including
47	47	a plaintiff, counterclaimant, or cross-claimant, in an action
48	48	described by this chapter and who is a land or mineral owner and
49	49	party to a written agreement with the defendant related to the
50	50	party's land or minerals or the defendant's activities regarding
51	51	captured or stored carbon dioxide.
52	52	(4) "Defendant" means a person against whom an action
53	53	described by this chapter is brought and who is:
54	54	(A) an owner or operator of:
55	55	(i) a facility used to store carbon
56	56	dioxide; or
57	57	(ii) a mechanism or instrumentality being
58	58	used to transport captured carbon dioxide, including a pipeline or
59	59	a tank or vessel carried by motor vehicle, watercraft, or rail; or
60	60	(B) a producer of captured carbon dioxide.
61	61	(5) "Geologic storage" means the underground storage
62	62	of carbon dioxide in a reservoir.
63	63	(6) "Geologic storage facility" means the underground
64	64	reservoir, underground equipment, injection wells, and surface
65	65	buildings and equipment used or to be used for the geologic storage
66	66	of carbon dioxide and all surface and subsurface rights and
67	67	appurtenances necessary to the operation of a facility for the
68	68	geologic storage of carbon dioxide. The term includes any
69	69	reasonable and necessary areal buffer and subsurface monitoring
70	70	zones, pressure fronts, and other areas as may be necessary for this
71	71	state to receive delegation of any federal underground injection
72	72	control program relating to the storage of carbon dioxide.
73	73	(7) "Legal requirement" means a statute, regulation,
74	74	rule, order, judgment, or permit controlling or directing conduct
75	75	or the design, construction, or use of a facility or equipment that
76	76	was enacted, adopted, promulgated, or issued by the federal
77	77	government, an agency of the federal government, a federal court,
78	78	this state, an agency or court of this state, or a local government
79	79	in this state.
80	80	(8) "Reservoir" has the meaning assigned by Section
81	81	27.002, Water Code.
82	82	(9) "Stored carbon dioxide" means captured carbon
83	83	dioxide that is being transported or temporarily or permanently
84	84	stored.
85	85	Sec. 100B.002. CAPTURED OR STORED CARBON DIOXIDE NOT
86	86	ACTIONABLE AS NUISANCE. A claimant may not bring an action against
87	87	a defendant on the basis that captured carbon dioxide, stored
88	88	carbon dioxide, or a process associated with capturing or storing
89	89	carbon dioxide:
90	90	(1) is a pollutant;
91	91	(2) constitutes a nuisance, including a public
92	92	nuisance, under common law or the laws of this state, including
93	93	Chapter 125; or
94	94	(3) has caused a nuisance-related injury.
95	95	Sec. 100B.003. LIMITED LIABILITY FOR INJECTION, MIGRATION,
96	96	AND RELEASE OF CAPTURED CARBON DIOXIDE. (a) This section applies
97	97	to a civil action for damages for injury to a person or property,
98	98	including for interference with a possessory interest or an
99	99	ownership right or an injury to crops or an animal, resulting from:
100	100	(1) the transmission or injection of captured carbon
101	101	dioxide into a geologic storage facility, including an action for
102	102	damages caused by seismic activity;
103	103	(2) subsurface migration of stored carbon dioxide,
104	104	including a claim for trespass or conversion arising from the
105	105	subsurface migration of stored carbon dioxide into a pore space,
106	106	geologic formation, cavity, void, reservoir, aquifer, mineral
107	107	deposit, or other geologic formation; or
108	108	(3) captured or stored carbon dioxide being
109	109	inadvertently released, including an action alleging environmental
110	110	damage caused by the inadvertent release of captured or stored
111	111	carbon dioxide into the air or surface water.
112	112	(b) A claimant may not recover noneconomic damages in a
113	113	civil action described by Subsection (a) unless the claimant
114	114	establishes, in addition to other requirements of law, actual
115	115	damages and one of the following:
116	116	(1) that:
117	117	(A) the defendant concealed, withheld, or
118	118	misrepresented information relevant to a permitting authority's
119	119	decision to grant the defendant a permit to:
120	120	(i) transport, capture, or store carbon
121	121	dioxide; or
122	122	(ii) conduct the process or operate the
123	123	equipment or facility being used to transport, capture, or store
124	124	carbon dioxide;
125	125	(B) the information described by Paragraph (A),
126	126	as applicable:
127	127	(i) relates to the safety or propriety of
128	128	injecting carbon dioxide into the geologic storage facility; or
129	129	(ii) is relevant to determining whether the
130	130	stored carbon dioxide could migrate or escape in the manner in which
131	131	it migrated or escaped;
132	132	(C) the permitting authority, in granting the
133	133	defendant's permit:
134	134	(i) reasonably relied on the information
135	135	provided by the defendant; and
136	136	(ii) did not receive the relevant accurate
137	137	information from another source before granting the defendant's
138	138	permit;
139	139	(D) the information described by Paragraph (A) is
140	140	of sufficient importance that a reasonable person with the
141	141	permitting authority's knowledge and experience would consider the
142	142	information material to the permitting authority's decision to
143	143	grant the permit; and
144	144	(E) the permit was granted not more than five
145	145	years before the date the carbon dioxide was injected, migrated, or
146	146	escaped;
147	147	(2) that:
148	148	(A) at the time of the event that caused the
149	149	damage that is the basis of the action, the defendant was not in
150	150	compliance with a legal requirement that governs an aspect of the
151	151	defendant's conduct, including conduct regarding the defendant's
152	152	equipment or facility, relevant to the event;
153	153	(B) the legal requirement is intended to protect
154	154	a person or property from the kind of damage that occurred in the
155	155	event; and
156	156	(C) if the defendant had been in compliance with
157	157	the legal requirement, the event would not have occurred; or
158	158	(3) that, only if the aspect of the defendant's
159	159	conduct, including conduct regarding the defendant's equipment or
160	160	facility, that is the basis of the action was not subject to a
161	161	permitting process described by Subdivision (1) or a legal
162	162	requirement described by Subdivision (2):
163	163	(A) the defendant's actions or omissions were
164	164	contrary to a standard industry practice for the conduct relevant
165	165	to the damage-causing event;
166	166	(B) the defendant chose not to comply with the
167	167	standard industry practice solely for an economic reason; and
168	168	(C) if the defendant had acted in accordance with
169	169	the standard industry practice, the damage-causing event would not
170	170	have occurred.
171	171	Sec. 100B.004. LIMITED LIABILITY FOR INTERFERENCE WITH
172	172	ACCESS TO UNDERGROUND MINERALS AND WATER DUE TO STORAGE OF CAPTURED
173	173	CARBON DIOXIDE. (a) A claimant may not recover noneconomic damages
174	174	in a civil action for a claim that a defendant prevented or impeded
175	175	access to, or interfered with the production of, underground
176	176	minerals or water due to the storage of captured carbon dioxide in a
177	177	geologic storage facility unless the claimant establishes, in
178	178	addition to other requirements under the law, actual damages and
179	179	that:
180	180	(1) the defendant withheld from or misrepresented to
181	181	the permitting authority information relevant to the authority
182	182	determining if storage of captured carbon dioxide in the geologic
183	183	storage facility would prevent or impede the claimant's access to
184	184	underground minerals or water or interfere with the claimant's
185	185	production of the minerals or water;
186	186	(2) the permitting authority, in granting the
187	187	defendant's permit:
188	188	(A) reasonably relied on the information
189	189	provided by the defendant described by Subdivision (1); and
190	190	(B) did not receive the relevant accurate
191	191	information from another source before granting the defendant's
192	192	permit;
193	193	(3) the claimant did not know or receive notification
194	194	of the proceeding in which the defendant obtained a permit to
195	195	establish the geologic storage facility; and
196	196	(4) the information described by Subdivision (1) is of
197	197	sufficient importance that a reasonable person with the permitting
198	198	authority's knowledge and experience would consider the
199	199	information material to the permitting authority's decision to
200	200	grant the permit.
201	201	(b) A claimant who receives compensation, including through
202	202	a lease payment, a royalty payment, or the purchase of an easement,
203	203	in consideration of the possibility that a geologic storage
204	204	facility may prevent or impede access to or interfere with the
205	205	production of the claimant's underground minerals or water is not
206	206	entitled to recover damages from the owner or operator of the
207	207	facility if the facility prevents or impedes access to or
208	208	interferes with the production of the claimant's minerals or water.
209	209	(c) The economic damages available under this section to a
210	210	claimant not barred from recovering damages under Subsection (b)
211	211	are limited to:
212	212	(1) if the defendant's geologic storage facility
213	213	prevents or impedes access to the claimant's underground minerals
214	214	or water, the increased cost to access the minerals or water that
215	215	results from penetrating or circumventing the geologic storage
216	216	facility;
217	217	(2) if the defendant's geologic storage facility
218	218	interferes with the production of the claimant's underground
219	219	minerals or water, the:
220	220	(A) increased cost to produce the minerals or
221	221	water; and
222	222	(B) present value of the minerals or water that
223	223	the claimant cannot with reasonable probability produce because of
224	224	the interference; or
225	225	(3) if the defendant's geologic storage facility
226	226	prevents access to and the production of the claimant's underground
227	227	minerals or water, the present value of the minerals or water that
228	228	the claimant cannot with reasonable probability produce because of
229	229	the geologic storage facility.
230	230	Sec. 100B.005. EXEMPLARY DAMAGES. In a civil action to
231	231	which Section 100B.003 or 100B.004 applies, a claimant may not
232	232	recover exemplary damages unless the claimant:
233	233	(1) proves the elements described by Section 100B.003
234	234	or 100B.004, as applicable; and
235	235	(2) meets the requirements for recovery of exemplary
236	236	damages under Chapter 41.
237	237	Sec. 100B.006. AGREEMENTS NOT IMPAIRED; WAIVABLE BY
238	238	AGREEMENT. (a) This chapter may not be construed to impair, amend,
239	239	alter, negate, or otherwise affect any right, obligation, or other
240	240	term of an agreement.
241	241	(b) The provisions of this chapter may be voluntarily waived
242	242	by agreement.
243	243	SECTION 2. Chapter 100B, Civil Practice and Remedies Code,
244	244	as added by this Act, is an exercise of authority under Section
245	245	66(c), Article III, Texas Constitution, and takes effect only if
246	246	this Act receives a vote of three-fifths of all the members elected
247	247	to each house, as provided by Subsection (e) of that section.
248	248	SECTION 3. The changes in law made by this Act apply only to
249	249	a cause of action that accrues on or after the effective date of
250	250	this Act.
251	251	SECTION 4. The changes in law made by this Act may not be
252	252	construed to impair a party's right or obligation under a contract
253	253	entered into before the effective date of this Act.
254	254	SECTION 5. This Act takes effect September 1, 2023.