This grant of authority could accelerate the permitting process for carbon capture and storage projects in the state.

By Joshua T. Bledsoe, Nikki Buffa, Jennifer Roy, and Samantha Yeager

On February 18, 2025, the US Environmental Protection Agency (EPA) approved a final rule granting West Virginia primary enforcement authority, or “primacy,” for permitting Class VI Underground Injection Control (UIC) wells under the Safe Drinking Water Act, marking a step forward for carbon capture and storage (CCS) projects in the state.

The Biden administration initially approved the grant of authority on January 17, 2025, after issuing a proposed rule in November 2024. Before the final rule was published in the Federal Register, President Trump issued an executive order imposing a regulatory freeze on unpublished, Biden-era approvals pending review by the new administration. The Trump EPA then approved a revised version of the final rule, keeping it largely intact but removing environmental justice measures included in the Biden version. The decision to grant West Virginia primacy offers an early indicator of the Trump administration’s position on CCS projects and its support for “cooperative federalism” and “permitting reform.” EPA Administrator Lee Zeldin highlighted both of these elements as necessary for greater US energy production.

This grant of authority has garnered strong support from West Virginia’s congressional delegation since EPA’s initial January approval. US Senator Shelley Moore Capito (R-W.Va.) applauded the grant of authority, expressing that West Virginia is “far better positioned” than the federal government to advance projects in-state that “protect [West Virginia’s] ability to provide reliable, baseload power” from coal and natural gas. And US Senator Jim Justice (R-W.Va.) said the approval is a “win for West Virginia” as “cutting the red tape advances [the] state’s economic growth and allows [it] to operate with regard for the environment.”

The final rule will go into effect on March 28, 2025, making West Virginia the fourth state to have Class VI UIC well permitting authority. The West Virginia Department of Environmental Protection (WVDEP) will assume responsibility for issuing and managing Class VI permits for wells used to sequester anthropogenic carbon dioxide. This shift is expected to leverage the WVDEP’s local expertise and resources, enabling more efficient project approvals tailored to the state’s unique geological and industrial landscape.

Latham & Watkins will continue to monitor developments in this area.