Illinois is home to the nation’s first, and so far, only operating CCS project. That project is an Archer Daniels Midland operation that sequesters CO2 captured from the company’s ethanol production facilities near Decatur, Illinois. This CCS project began operations more than a decade ago. Further, it seemed that Illinois might be set for an expansion of CCS operations, as multiple companies were planning projects to capture CO2 from numerous ethanol and fertilizer plants in several Midwestern states, then transport the CO2 via pipelines to injection sites in Illinois and elsewhere.

But two companies that were seeking permits from the Illinois Commerce Commission to construct CO₂ pipelines in Illinois have withdrawn those applications.  First, in October 2023, Navigator CO₂ Ventures cancelled its proposed project, which would have routed pipelines through several states, including Illinois, after South Dakota regulators denied the company’s permit as to the portion of the proposed pipeline route within South Dakota.  Because the company was cancelling its project, it withdrew its permit application in Illinois.

Then, in November 2023, Wolf Carbon Solutions U.S. withdrew its permit application to the Illinois Commerce Commission after Commission staff expressed concerns and recommended that the Commission reject the application.  The company stated that it planned to address the concerns raised by the Commission staff and refile a permit application in 2024.  Thus, unlike Navigator CO₂ Ventures, Wolf was not planning on cancelling its project.  Instead, its attempt to get a permit would simply be delayed for a few months.

Now, however, it appears that there will be significant additional delays for that project, as well as others.  In late May 2024, the Illinois Legislature passed Senate Bill 1289, dubbed the “Safety and Aid for the Environment in Carbon Capture and Sequestration Act,” or the “SAFE CCS Act,” and Governor J.B. Pritzker has stated that he intends to sign the legislation.[1]  The Bill, which runs to 104 pages, contains a broad set of rules for CCS, including a moratorium on the construction of new carbon dioxide pipelines in Illinois until July 2026 or until the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) has adopted revised rules for carbon dioxide pipeline safety,[2] pursuant to a proposed rulemaking announced by PHMSA[3] that has Regulatory Information Number (RIN) 2137-AF60.[4]  Senate Bill 1289 provides that all pending applications for permits to construct CO₂ pipelines are dismissed without prejudice.[5]

The legislation also addresses other issues relating to CO₂ pipelines and CCS generally.  For example, the legislation purports to require applicants for permits to construct and operate CO₂ pipelines to prepare and submit emergency operations plans to state regulators.[6]  This requirement may be preempted by the federal Pipeline Safety Act, which includes requirements regarding safety planning and an express preemption provision.

Further, although Illinois does not have primacy under the Safe Drinking Water Act for Class VI injection wells for CCS,[7] the legislation purports to prohibit anyone from conducting CCS without a permit from state regulators.[8]  The legislation also contains multiple pages of requirements for CCS projects that appear to address the same issues as are addressed by the federal Safe Drinking Water Act regulations for Class VI wells.

[1] A PDF copy of the legislation is available at: https://www.ilga.gov/legislation/103/SB/PDF/10300SB1289lv.pdf.

[2] This provision appears at pages 47 to 48 of the bill, which would be codified at 220 ILCS 75/20(g).

[3] PHMSA announced on May 26, 2022 that, in response to the CO₂ pipeline failure near Satartia, Mississippi, that the agency would pursue a new rulemaking.  See “PHMSA Announces New Safety Measures to Protect Americans From Carbon Dioxide Pipeline Failures After Satartia, MS Leak,” available at https://www.phmsa.dot.gov/news/phmsa-announces-new-safety-measures-protect-americans-carbon-dioxide-pipeline-failures.

[4] An information page for RIN 2137-AF60 appears at (though little information is yet available): https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202304&RIN=2137-AF60.

[5] This provision appears at page 50 the bill, which would be codified at 220 ILCS 75/20(j).

[6] This appears at page 43 of the bill, and would be codified at 220 ILCS 75/20(b)(6.4).

[7] The federal regulations that implement Part C of Safe Drinking Water Act, relating to underground injections, recognize six classes of injection wells (I through VI) and provide different regulations for each.

[8] This appears at p. 80 of the bill, which would be codified at 415 ILCS 5/59.5.