This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.

  88R23511 JES-F
 
  By: Darby, Leach, Bonnen, Guillen, Landgraf H.B. No. 4557
 
  Substitute the following for H.B. No. 4557:
 
  By:  Leach C.S.H.B. No. 4557
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to liability for capturing and storing carbon dioxide.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Title 4, Civil Practice and Remedies Code, is
  amended by adding Chapter 100B to read as follows:
  CHAPTER 100B.  LIMITED LIABILITY FOR CAPTURING AND STORING CARBON
  DIOXIDE
         Sec. 100B.001.  DEFINITIONS.  In this chapter:
               (1)  "Captured carbon dioxide" means carbon dioxide
  from any source that, through human effort or means, is seized for
  the purpose of sequestering the carbon dioxide with the intent of
  permanently preventing the carbon dioxide from being released into
  the atmosphere, including carbon dioxide that is:
                     (A)  captured from the atmosphere;
                     (B)  stripped, segregated, or divided from a fluid
  stream; or
                     (C)  captured from an emissions source, including
  from:
                           (i)  an advanced clean energy project as
  defined by Section 382.003, Health and Safety Code;
                           (ii)  an electric generation facility; or
                           (iii)  an industrial source of emissions.
               (2)  "Carbon dioxide" means the chemical compound
  composed of one carbon and two oxygen atoms. The term includes:
                     (A)  anthropogenic carbon dioxide;
                     (B)  naturally occurring carbon dioxide;
                     (C)  carbon dioxide captured from the atmosphere;
  and
                     (D)  phases, mixtures, and combinations of carbon
  dioxide that include:
                           (i)  a substance incidentally derived from
  the source materials for or process of capturing the carbon
  dioxide;
                           (ii)  a substance added to the carbon
  dioxide stream to enable or improve storage of the carbon dioxide;
  and
                           (iii)  a substance incidentally captured
  with carbon dioxide captured from the atmosphere.
               (3)  "Claimant" means a party seeking relief, including
  a plaintiff, counterclaimant, or cross-claimant, in an action
  described by this chapter and who is a land or mineral owner and
  party to a written agreement with the defendant related to the
  party's land or minerals or the defendant's activities regarding
  captured or stored carbon dioxide.
               (4)  "Defendant" means a person against whom an action
  described by this chapter is brought and who is:
                     (A)  an owner or operator of:
                           (i)  a facility used to store carbon
  dioxide; or
                           (ii)  a mechanism or instrumentality being
  used to transport captured carbon dioxide, including a pipeline or
  a tank or vessel carried by motor vehicle, watercraft, or rail; or
                     (B)  a producer of captured carbon dioxide.
               (5)  "Geologic storage" means the underground storage
  of carbon dioxide in a reservoir.
               (6)  "Geologic storage facility" means the underground
  reservoir, underground equipment, injection wells, and surface
  buildings and equipment used or to be used for the geologic storage
  of carbon dioxide and all surface and subsurface rights and
  appurtenances necessary to the operation of a facility for the
  geologic storage of carbon dioxide.  The term includes any
  reasonable and necessary areal buffer and subsurface monitoring
  zones, pressure fronts, and other areas as may be necessary for this
  state to receive delegation of any federal underground injection
  control program relating to the storage of carbon dioxide.
               (7)  "Legal requirement" means a statute, regulation,
  rule, order, judgment, or permit controlling or directing conduct
  or the design, construction, or use of a facility or equipment that
  was enacted, adopted, promulgated, or issued by the federal
  government, an agency of the federal government, a federal court,
  this state, an agency or court of this state, or a local government
  in this state.
               (8)  "Reservoir" has the meaning assigned by Section
  27.002, Water Code.
               (9)  "Stored carbon dioxide" means captured carbon
  dioxide that is being transported or temporarily or permanently
  stored.
         Sec. 100B.002.  CAPTURED OR STORED CARBON DIOXIDE NOT
  ACTIONABLE AS NUISANCE.  A claimant may not bring an action against
  a defendant on the basis that captured carbon dioxide, stored
  carbon dioxide, or a process associated with capturing or storing
  carbon dioxide:
               (1)  is a pollutant;
               (2)  constitutes a nuisance, including a public
  nuisance, under common law or the laws of this state, including
  Chapter 125; or
               (3)  has caused a nuisance-related injury.
         Sec. 100B.003.  LIMITED LIABILITY FOR INJECTION, MIGRATION,
  AND RELEASE OF CAPTURED CARBON DIOXIDE.  (a)  This section applies
  to a civil action for damages for injury to a person or property,
  including for interference with a possessory interest or an
  ownership right or an injury to crops or an animal, resulting from:
               (1)  the transmission or injection of captured carbon
  dioxide into a geologic storage facility, including an action for
  damages caused by seismic activity;
               (2)  subsurface migration of stored carbon dioxide,
  including a claim for trespass or conversion arising from the
  subsurface migration of stored carbon dioxide into a pore space,
  geologic formation, cavity, void, reservoir, aquifer, mineral
  deposit, or other geologic formation; or
               (3)  captured or stored carbon dioxide being
  inadvertently released, including an action alleging environmental
  damage caused by the inadvertent release of captured or stored
  carbon dioxide into the air or surface water.
         (b)  A claimant may not recover noneconomic damages in a
  civil action described by Subsection (a) unless the claimant
  establishes, in addition to other requirements of law, actual
  damages and one of the following:
               (1)  that:
                     (A)  the defendant concealed, withheld, or
  misrepresented information relevant to a permitting authority's
  decision to grant the defendant a permit to:
                           (i)  transport, capture, or store carbon
  dioxide; or
                           (ii)  conduct the process or operate the
  equipment or facility being used to transport, capture, or store
  carbon dioxide;
                     (B)  the information described by Paragraph (A),
  as applicable:
                           (i)  relates to the safety or propriety of
  injecting carbon dioxide into the geologic storage facility; or
                           (ii)  is relevant to determining whether the
  stored carbon dioxide could migrate or escape in the manner in which
  it migrated or escaped;
                     (C)  the permitting authority, in granting the
  defendant's permit:
                           (i)  reasonably relied on the information
  provided by the defendant; and
                           (ii)  did not receive the relevant accurate
  information from another source before granting the defendant's
  permit;
                     (D)  the information described by Paragraph (A) is
  of sufficient importance that a reasonable person with the
  permitting authority's knowledge and experience would consider the
  information material to the permitting authority's decision to
  grant the permit; and
                     (E)  the permit was granted not more than five
  years before the date the carbon dioxide was injected, migrated, or
  escaped;
               (2)  that:
                     (A)  at the time of the event that caused the
  damage that is the basis of the action, the defendant was not in
  compliance with a legal requirement that governs an aspect of the
  defendant's conduct, including conduct regarding the defendant's
  equipment or facility, relevant to the event;
                     (B)  the legal requirement is intended to protect
  a person or property from the kind of damage that occurred in the
  event; and
                     (C)  if the defendant had been in compliance with
  the legal requirement, the event would not have occurred; or
               (3)  that, only if the aspect of the defendant's
  conduct, including conduct regarding the defendant's equipment or
  facility, that is the basis of the action was not subject to a
  permitting process described by Subdivision (1) or a legal
  requirement described by Subdivision (2):
                     (A)  the defendant's actions or omissions were
  contrary to a standard industry practice for the conduct relevant
  to the damage-causing event;
                     (B)  the defendant chose not to comply with the
  standard industry practice solely for an economic reason; and
                     (C)  if the defendant had acted in accordance with
  the standard industry practice, the damage-causing event would not
  have occurred.
         Sec. 100B.004.  LIMITED LIABILITY FOR INTERFERENCE WITH
  ACCESS TO UNDERGROUND MINERALS AND WATER DUE TO STORAGE OF CAPTURED
  CARBON DIOXIDE.  (a)  A claimant may not recover noneconomic damages
  in a civil action for a claim that a defendant prevented or impeded
  access to, or interfered with the production of, underground
  minerals or water due to the storage of captured carbon dioxide in a
  geologic storage facility unless the claimant establishes, in
  addition to other requirements under the law, actual damages and
  that:
               (1)  the defendant withheld from or misrepresented to
  the permitting authority information relevant to the authority
  determining if storage of captured carbon dioxide in the geologic
  storage facility would prevent or impede the claimant's access to
  underground minerals or water or interfere with the claimant's
  production of the minerals or water;
               (2)  the permitting authority, in granting the
  defendant's permit:
                     (A)  reasonably relied on the information
  provided by the defendant described by Subdivision (1); and
                     (B)  did not receive the relevant accurate
  information from another source before granting the defendant's
  permit;
               (3)  the claimant did not know or receive notification
  of the proceeding in which the defendant obtained a permit to
  establish the geologic storage facility; and
               (4)  the information described by Subdivision (1) is of
  sufficient importance that a reasonable person with the permitting
  authority's knowledge and experience would consider the
  information material to the permitting authority's decision to
  grant the permit.
         (b)  A claimant who receives compensation, including through
  a lease payment, a royalty payment, or the purchase of an easement,
  in consideration of the possibility that a geologic storage
  facility may prevent or impede access to or interfere with the
  production of the claimant's underground minerals or water is not
  entitled to recover damages from the owner or operator of the
  facility if the facility prevents or impedes access to or
  interferes with the production of the claimant's minerals or water.
         (c)  The economic damages available under this section to a
  claimant not barred from recovering damages under Subsection (b)
  are limited to:
               (1)  if the defendant's geologic storage facility
  prevents or impedes access to the claimant's underground minerals
  or water, the increased cost to access the minerals or water that
  results from penetrating or circumventing the geologic storage
  facility;
               (2)  if the defendant's geologic storage facility
  interferes with the production of the claimant's underground
  minerals or water, the:
                     (A)  increased cost to produce the minerals or
  water; and
                     (B)  present value of the minerals or water that
  the claimant cannot with reasonable probability produce because of
  the interference; or
               (3)  if the defendant's geologic storage facility
  prevents access to and the production of the claimant's underground
  minerals or water, the present value of the minerals or water that
  the claimant cannot with reasonable probability produce because of
  the geologic storage facility.
         Sec. 100B.005.  EXEMPLARY DAMAGES.  In a civil action to
  which Section 100B.003 or 100B.004 applies, a claimant may not
  recover exemplary damages unless the claimant:
               (1)  proves the elements described by Section 100B.003
  or 100B.004, as applicable; and
               (2)  meets the requirements for recovery of exemplary
  damages under Chapter 41.
         Sec. 100B.006.  AGREEMENTS NOT IMPAIRED; WAIVABLE BY
  AGREEMENT.  (a)  This chapter may not be construed to impair, amend,
  alter, negate, or otherwise affect any right, obligation, or other
  term of an agreement.
         (b)  The provisions of this chapter may be voluntarily waived
  by agreement.
         SECTION 2.  Chapter 100B, Civil Practice and Remedies Code,
  as added by this Act, is an exercise of authority under Section
  66(c), Article III, Texas Constitution, and takes effect only if
  this Act receives a vote of three-fifths of all the members elected
  to each house, as provided by Subsection (e) of that section.
         SECTION 3.  The changes in law made by this Act apply only to
  a cause of action that accrues on or after the effective date of
  this Act.
         SECTION 4.  The changes in law made by this Act may not be
  construed to impair a party's right or obligation under a contract
  entered into before the effective date of this Act.
         SECTION 5.  This Act takes effect September 1, 2023.