Submitted February 5, 2016
Petitions for Review of an Order of the Environmental Protection Agency
Before Bauer, Flaum, and Sykes, Circuit Judges.
Petitioners DJL Farm LLC, Andrew H. Leinberger Family Trust, and William and Sharon Critchelow are landowners who challenge permits authorizing FutureGen Industrial Alliance to construct and operate wells to store carbon dioxide near their land.
Shortly before argument, FutureGen determined that it did not have enough money to develop the wells authorized by the permits and, with the EPA, moved to dismiss the consolidated petitions as moot. After hearing from both sides, we conclude that because the four permits expired on February 2, 2016, they are no longer in force and petitioners lack any concrete interest in challenging them. We therefore dis- miss as moot the petitions for review.
FutureGen Industrial Alliance was created to research and develop near-zero emissions coal technology and sought to use carbon capture and storage to develop the world's first near-zero emissions power plant in Morgan County, Illinois.
Geologic sequestration is part of the process known as carbon capture and storage, and involves the injection of carbon dioxide into deep subsurface rock formations for storage. This long-term underground storage is intended to reduce carbon dioxide emissions to the atmosphere and mitigate climate change.
The Safe Drinking Water Act requires the EPA to regulate underground injection of hazardous material under permits that will ensure protection of underground sources of drinking water. The EPA has determined that pressurized carbon dioxide is a hazardous material. Under EPA regulations finalized in 2010, all injection activities are prohibited until the owner or operator is authorized by permit. See 40 C.F.R. § 144.31.
In March 2013 FutureGen applied for permits to construct four Class VI underground injection control wells and inject approximately 22 million metric tons of carbon dioxide into the wells over a 20-year period. After requesting additional information, the EPA issued draft permits in March 2014. Petitioners submitted written comments challenging the permits during the public comment period.
In August 2014 the EPA issued four permits to FutureGen authorizing it to construct and operate underground injection control wells. They were the first to be issued under the new regulations governing injection control wells.
Petitioners filed timely petitions for review with the Environmental Appeals Board, which the Board denied. The EPA issued the final permits on May 7, 2015. Petitioners then sought review in this court.
In January 2015, the United States Department of Energy suspended funding for the FutureGen project authorized by the challenged permits. The permits were set to expire on May 7, 2016, unless construction of the wells had begun or an extension was allowed. After exhausting avenues to rein- state that funding, FutureGen determined that it will not proceed with development of the project. On ...