Forest Service Proposes Rule to Remove Barrier to CO2 Capture and Storage under Forest Service Lands

On November 3, 2023, the U.S. Forest Service, an agency within the Department of Agriculture, proposed a rule that would amend its special use regulations to permit carbon capture and storage (CCS) on National Forest Service (NFS) lands. These special use regulations prohibit authorizing exclusive and perpetual use and occupancy of National Forest System lands. The proposed rule would not, by itself, authorize CCS on NFS lands, but would modify the "perpetual use and occupancy" standard so that the Forest Service may consider CCS projects if they are proposed.

The Forest Service administers approximately 74,000 special use authorizations for use and occupancy of NFS lands for a wide variety of purposes, including powerline facilities, communications facilities, outfitting and guiding, campground concessions, and resorts. To obtain a special use authorization for a new use or activity, a proponent must submit a special use proposal which must meet certain screening criteria and be evaluated by the Forest Service. One of the existing initial screening criteria provides that the Forest Service may not authorize exclusive and perpetual use and occupancy of NFS lands.

This poses a problem for CCS, which can entail injecting and storing carbon dioxide in subsurface geological formations to mitigate greenhouse gas emissions. Carbon dioxide injected in these spaces may remain for over 1,000 years after injection and would be tantamount to an exclusive and perpetual use and occupancy if authorized on NFS lands. Therefore, the Forest Service is proposing to amend the initial screening criterion that prohibits authorizing exclusive and perpetual use and occupancy of NFS lands to provide an exemption for carbon capture and storage. 

The Forest Service is accepting comments on the proposed rule until January 2, 2024.