What Texas Can Learn From La. About CO2 Well Primacy
This article was written for and published in Law360.
On Nov. 14, the U.S. Environmental Protection Agency finalized a rule granting the state of Texas primary permitting and enforcement authority over Class VI underground injection control, or UIC, wells under the federal Safe Drinking Water Act, or SDWA.[1]
Class VI wells are used to inject compressed carbon dioxide into deep rock formations underground. The final rule allows the Texas Railroad Commission — which has primary regulatory jurisdiction over the oil and natural gas industry in the state — to regulate the geologic sequestration of CO2, a critical component of carbon capture and storage, or CCS, projects.
Class VI primacy for Texas represents a significant step forward for CCS projects in Texas, as the Railroad Commission intends to issue permits at an accelerated pace. However, with more CCS projects on the horizon, proactive stakeholder engagement around those projects is of utmost importance.
Unaddressed public concerns over individual projects could stifle the development of the CCS industry, as was the case in Louisiana after it obtained primacy from the EPA. If Texas avoids the pitfalls that occurred there, it could serve as a model for other states looking to take over CCS permitting from the EPA.
Background
The SDWA tasked the EPA with establishing UIC regulations to prevent contamination of underground sources of drinking water from injection wells used to store fluids in underground geologic formations.[2]
In 1983, the EPA established five classes of underground wells, including industrial and municipal waste disposal wells (Class I) and oil- and gas-related injection wells (Class II).
The SDWA authorizes states to submit plans to the EPA for implementing their own UIC programs and, if approved, to assume primary enforcement responsibility over these wells. Most states, including Texas, have done so with respect to all five original classes of wells.
In 2010, the EPA created a new class of underground injection wells, Class VI wells, which are used to store injections of CO2 underground for the purpose of geologic sequestration.[3] States have been relatively slow to seek and obtain primacy for this new class of wells.
Before Texas, only five states — Arizona, Louisiana, North Dakota, West Virginia and Wyoming — had assumed primacy for Class VI wells.
Texas' Application
Texas' favorable geology and existing CO2 pipeline infrastructure have made the state a desirable setting for CCS projects. But prior to this approval, developers in Texas were required to comply with the EPA's multiyear permitting process to authorize construction of their Class VI wells.
Beginning in 2021, the Railroad Commission began developing its own Class VI program, and its staff began reviewing permit applications alongside the EPA. Texas began applying to the EPA for primacy for Class VI injection wells in December 2022, and its application was finalized on Feb. 20, 2025.
As part of its application, the Railroad Commission stated that it would be able to review and process permits quicker than EPA. There are two main stages to the Railroad Commission's permitting process.
First, the applicant receives a permit from the Railroad Commission to construct a Class VI well or convert an existing well to Class VI operations. Second, once the well is completed, the applicant receives approval from the Railroad Commission to inject CO2 into the well. The Railroad Commission expects that its permitting process will complete review of each stage within six months.
On June 17, 2025, the EPA proposed approving Texas' application in the Federal Register, and began accepting public comments.[4] Supporting commenters highlighted the Railroad Commission's experience regulating deep injection wells since 1982, and the commission's existing familiarity with CO2 injection via regulation of Class II enhanced oil recovery wells.
Opposing commenters argued that the Railroad Commission has been a lax enforcer of the regulations it currently oversees with respect to those Class II injection wells.
The EPA formally approved Texas' application on Nov. 14, and Texas' oversight became effective on Dec. 15. Opponents may challenge the EPA's decision by filing a petition in the U.S. Court of Appeals for the Fifth Circuit within 45 days after the final rule took effect, pursuant to Title 42 of the U.S. Code, Section 300j-7(a)(2).
Next Steps
Texas is on the forefront for new Class VI carbon storage permits. The Railroad Commission reports that it has already received 18 applications, and anticipates more forthcoming.
CCS developers in Texas that intend to apply for a Class VI permit should engage with the Railroad Commission at the earliest opportunity, and complete their permit applications promptly to secure favorable positions in the permitting queue.
Primacy is expected to reduce Texas' permitting timelines significantly and accelerate CCS project development, although given that this is a new endeavor for the Railroad Commission, unforeseen issues could delay projects while procedural kinks are ironed out.
Applicants should be aware that Texas requires meaningful public notice-and-comment opportunities. Once a permit is deemed complete, the Railroad Commission will put together a draft permit, prepare a fact sheet summarizing the project and issue a public notice announcing a public comment period.
In addition to providing general notice to the public through publication, the Railroad Commission will send out individual notices to a variety of parties, such as nearby landowners and local governments.[5]
The Railroad Commission will hold a public hearing if requested by the applicant or any interested party — including a party opposing issuance of the permit — or, if within the agency's discretion, a public hearing is necessary.
After completing any public hearings and reviewing public comments, the Railroad Commission will make a final decision on the permit application.
Companies that hold existing Class VI permits issued by the EPA in Texas should monitor Class VI regulatory developments and adjust their compliance strategies as needed. The EPA will maintain programmatic review, and conduct regular audits to ensure that Texas meets or exceeds federal standards under the SDWA.
The EPA will also retain its ability to directly enforce Class VI permits in Texas, regardless of whether the Railroad Commission decides to take enforcement action.
Lessons From Louisiana
The CCS industry in Texas should pay close attention to how the CCS permitting process played out after Louisiana was granted Class VI primacy in 2024.
In May 2025, in Deep South Center for Environmental Justice v. EPA, the Fifth Circuit declined to review the EPA's approval of Louisiana's application for Class VI primacy, on the basis that the petitioners lacked standing to pursue their claims.[6]
Environmental advocacy groups in Texas have also opposed the EPA's decision to grant Texas Class VI primacy, and similar legal challenges to the agency's decision are likely to be filed in the coming weeks.
In the Louisiana case, industry and business groups did significant work to help defend the EPA's decision by intervening or filing amicus briefs in support of the agency, and groups in Texas should consider doing the same.
In its application to the EPA, Louisiana estimated that its review of Class VI permit applications would require nine to 12 months after receipt of a complete permit application.
However, after the state gained primacy on Feb. 5, 2024, Louisiana's Department of Natural Resources received dozens of voluminous applications for Class VI wells to support a wave of new CCS projects across the state.
Despite its representations to the EPA, Louisiana failed to complete its review for even a single application until Sept. 5, 2025, when it issued its one and only Class VI permit. In the meantime, local opposition to the proposed Class VI wells was proving to be more vocal than expected, and it spanned the political spectrum.
Proposed projects began encountering roadblocks outside of the Class VI permitting process, including hurdles raised by land use regulations and zoning ordinances. And proposed laws that would increase local control over new CCS developments began to find support within the state legislature.
On Oct. 15, 2025, in response to increasingly vocal disagreements over CCS developments from community groups and local political bodies, Gov. Jeff Landry signed an executive order declaring a moratorium on review of new permit applications for Class VI underground injection wells in the state.
The same executive order directed the state's Department of Natural Resources to expedite its review of pending applications, prioritizing those that were most complete. Despite this, no additional Class VI permits have been issued to date.
Texas can learn from what happened in Louisiana. Although there is no guaranteed method for winning local support for CCS projects, it's important for project sponsors and stakeholders to prioritize early community engagement. Failure to do so may be viewed as deliberate subterfuge or indifference to community concerns.
In addition, project sponsors and stakeholders should directly address public concerns associated with Class VI storage wells, and educate communities about CCS technologies and the industry's commitment to environmental and human health protections.
Project sponsors should also highlight the economic benefits that will flow to local communities from their CCS projects, and help to realize those benefits by intentionally incorporating local labor, support services and supply chains into their developments.
Class VI primacy has been years in the making for Texas, and this final rule represents an important step forward for CCS projects in the state. Nevertheless, experience in Louisiana has taught us that success today does not guarantee success tomorrow.
In addition to engaging with the communities hosting their CCS developments, project sponsors should continue engaging with the Texas Railroad Commission and other state leaders to publicly champion the benefits of their CCS projects.
In particular, stakeholders should monitor future state CCS rulemakings for opportunities to submit public comments supporting the CCS industry, and should stay aware of other potential avenues for public participation.
Conclusion
Class VI primacy is a significant milestone for CCS developments in Texas. By streamlining permitting through the Railroad Commission, Texas is poised to leverage its favorable geology and existing infrastructure to accelerate CCS projects.
Given ongoing challenges with Louisiana's CCS permitting process, Texas now has an opportunity to be a regional leader in the CCS space.
However, this transition also brings heightened scrutiny and potential legal challenges from NGOs, local community organizations and others, underscoring the importance of proactive stakeholder engagement and conscientious regulatory compliance.
Industry participants should remain vigilant in addressing public concerns, monitoring regulatory developments and supporting policies that reinforce environmental protection and community trust.
Ultimately, Texas' leadership in CCS development could serve as a model for other states — if implemented diligently and intentionally.
Phelps Dunbar associate Blake Donewar contributed to this article.
[1] Texas Underground Injection Control (UIC) Program; Class VI Primacy Application, 90 Fed. Reg. 51021 (Nov. 14, 2025).
[2] 42 U.S. Code § 300h-1.
[3] Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells, 75 Fed. Reg. 77230 (Dec. 10, 2010).
[4] Texas Underground Injection Control (UIC) Program; Class VI Primacy, 90 Fed. Reg. 25547 (June 17, 2025).
[5] 16 Texas Admin. Code § 5.204(a)(3).
[6] Deep South Center for Environmental Justice v. EPA , 138 F.4th 310 (5th Cir. 2025).