The geologic sequestration of carbon dioxide (CO₂) is a billion-dollar industry and is only projected to grow over the next decade.¹ The key environmental permit needed for these projects is an Underground Injection Control (UIC) Class VI permit for the injection wells used for geological sequestration. While some states have obtained authority to issue Class VI permits (including, recently, Texas and West Virginia), in most states, the US Environmental Protection Agency (EPA) is the Class VI permitting agency. EPA has permitted 11 CO₂ storage projects since the inception of the Class VI program in 2010 and currently has over 100 Class VI permits under review. As EPA clears this backlog and ramps up its issuance of Class VI permits, we are likely to see an increase in challenges to these permits before the EPA Environmental Appeals Board (EAB or Board), a process that is often new for Class VI operators. This is a short primer on what Class VI operators can expect if their permit is appealed to the EAB.

1. What is the EPA Environmental Appeals Board and why do they have jurisdiction over Class VI permit challenges?

The EAB is an independent administrative tribunal that resolves appeals of certain environmental disputes arising under the major environmental statutes EPA administers. Its caseload consists primarily of federal permitting decisions and administrative enforcement appeals brought under major environmental statutes.² The EPA Administrator has delegated to the Board the authority to hear appeals of EPA-issued permits, such as Safe Drinking Water Act UIC permits (including Class VI permits), Clean Water Act National Pollution Discharge Elimination System permits, Clean Air Act Title V permits, and Prevention of Significant Deterioration permits. EAB judges are career EPA employees that are appointed by the EPA Administrator. In most cases, disputes are heard by a three-judge panel of EAB judges.  

EPA regulations require that a party exhaust its administrative remedies by first filing a permit appeal with the EAB before a permit can be appealed to federal court. While this post focuses on Class VI permits, the procedures for an EAB challenge (set forth at 40 C.F.R. § 124.19) are similar for challenges to other types of EPA permits.

2. What is the process for a challenge to a Class VI permit?

For Class VI permits and other permits governed by Part 124, a petition must be filed with the EAB within 30 days of issuance of the final permit decision. 40 C.F.R. § 124.19(a)(3). Filing a petition before the EAB is a prerequisite for appeal the action in federal court. If a petition for review of a Class VI permit is not filed within 30 days of permit issuance, the permit cannot be challenged except in narrow circumstances. 40 C.F.R. §§ 22.27(d), 124.19(l). The petition must identify the contested permit decision or specific challenge to the permit decision and explain with factual and legal support why the petitioner believes the permit should be reviewed. 40 C.F.R. § 124.19(a)(4).

EPA must file a response to the petition along with a certified index of the administrative record within 30 days of service of the petition. The permit applicant may also file a response within 30 days of service of the petition if they desire to participate in the appeal process. 40 C.F.R. § 124.19(b). It is often useful for the permittee to participate in the EAB proceedings to support the defense of the permit. The petitioner’s reply is due within 15 days of the service of the EPA’s and permittee’s responses. 40 C.F.R. § 124.19(c)(2). Due to the complexity of Class VI permits and their administrative records, these default deadlines are often extended.

After the briefing of the case is complete, the Board has discretion to hold oral argument. 40 C.F.R. § 124.19(h). Following briefing and oral argument (if ordered), the Board will issue a written decision upholding the permit decision or reversing (fully or partially) and remanding the permit. If the permit is upheld, it will become effective shortly thereafter. If the permit is reversed in full or in part, it will be sent back to EPA for further action.

3. What does the EAB consider in its review?

The petitioner has the burden of demonstrating that a permitting decision is based on a clearly erroneous finding of fact or conclusion of law or otherwise constitutes an abuse of discretion such that the Board’s review is warranted. 40 C.F.R. § 124.19(a)(4)(i). On technical issues, the Board often defers to EPA if the administrative record shows that EPA used its considered judgment in making the technical decision.

The Board’s review of the permitting decision is focused on the permit decision itself and is largely limited to the certified administrative record. This means that EPA or the permittee, in responding to the petition, cannot introduce new evidence to support the decision and instead (with limited exceptions) must cite exclusively to records contained in the administrative record for support for a decision.

4. What is the likelihood of success of an EAB challenge to a Class VI Permit?

Six Class VI permits have been challenged before the EAB since the start of the Class VI permit program in 2010, with four of those cases having reached a final decision. There have been mixed results: in two cases, the Board denied review and upheld the permit; in one case, the Board granted review in part and remanded part of the permit back to EPA; and in one case, the Board granted a motion to dismiss based on Class VI primacy being granted to the state. The Board held oral argument in one of those cases. Two Class VI permit challenges are currently pending before the Board.

5. What happens to a Class VI project while EAB case is pending?

When a petition for review is filed before the Board, the final Class VI permit is stayed pending the appeal and does not become effective. 40 C.F.R. § 124.16(a). Challenges before the EAB take anywhere between six to 16 months, potentially causing a substantial delay of the permit going into effect. Because the Class VI permit is not effective throughout the pendency of the appeal, the permittee generally cannot commence activities that require permit authorization, such as construction (in some cases) or operation of the injection well. As a result, an EAB challenge can result in project delays that have commercial and business implications.  

6. What can a Class VI project proponent do to be proactive about permit challenges?

Permittees should understand at the outset of project planning the potential for a challenge to a permit decision to the EAB and strategies for reducing the risk of a challenge. Project timelines should consider and account for the possibility of a permit challenge in commercial agreements and planning. If a challenge is filed, permittees should consider participation in the EAB proceedings to support the defense of the permit.

[1] Carbon Capture and Sequestration (CCS) Market Size, Share & Industry Analysis, By Capture Source (Chemicals, Natural Gas Processing, Power Generation, Fertilizers Production, and Others), By End-Use (Enhanced Oil Recovery {EOR} and Dedicated Storage & Treatment), and Regional Forecast, 2026-2034, Fortune Business Insights (July 27, 2026).

[2] Guide to the US EPA’s Environmental Appeals Board (March 2023).