A summary of key points from the 187-page final regulation

By Matt Lucas, PhD; Managing Director, Business Development

I’m excited about carbon capture technology; it’s critical for decarbonizing hard-to-electrify industrial infrastructure and other facilities whose emissions are challenging to mitigate. So, like many others, I’ve been waiting for the IRS to release its final carbon capture regulations on 45Q, the federal tax credit.  

After nearly three years of anticipation, we finally have both the regulations and the IRS’s commentary. As then-Treasury Secretary Mnuchin said, “These final regulations provide taxpayers and the American energy sector with needed clarity on utilizing the section 45Q credit.” Finally! 

For carbon capture to continue to iterate, scale, and improve, it needs non-recourse project financing and the traditionally conservative tax equity community to come to the table. Tax equity is critical for monetizing 45Q.  

There’s a great deal to glean from the IRS guidance, but I would guess most people don’t have the time or patience to sift through its 187 pages. Here’s your cheat sheet: I’ve summarized the key points, which collectively provide the additional clarity and certainty that investors need to invest in carbon capture.  

11 Takeaways from the 45Q Final Guidance: 

1. Removing the Cap: One of the key reforms to the 45Q regulation was to lift the 75 million ton cap on credits. However, the cap still applies to qualified carbon capture facilities placed in service before February 9, 2018 (i.e. before the reform was passed). In the interim, several 45Q credits have been ‘disallowed’—IRS–speak for ‘revoked’ because the taxpayers claiming them were not complying with the regulations. The IRS clarified that those disallowed credits will be returned to the 75Mt pool. To keep track, the IRS publishes an annual running tally (page 925) of claimed credits and will continue to do so until the cap is reached. In June 2020, 72,087,903 credits had been claimed, so I suppose the cap will be hit soon, even with the exclusion of the disallowed credits, and this annual report will then become irrelevant.

2. Clarifying Who Gets the Credit: Some carbon capture projects (including many of the early demos) were vertically integrated from capture through geologic storage, so there was no question about who could claim the tax credit and who had responsibility for secure storage. However, this becomes more complicated when the capture and storage are completed by different parties. The IRS ruled that the credit belongs to the party that owns the capture equipment, and only they can elect to transfer the credit. Furthermore, the owner of the capture equipment may be different than the owner of the industrial facility, which the equipment is capturing from. This is important for carbon capture entrepreneurship; third–party capital can be brought to existing emitting facilities that don’t understand carbon capture but still want to benefit from the emissions reduction.

3. Contractually Ensuring CO2 is Stored (Sort of): Beyond ownership, a greater complication is the contract between the capture company and the storage company. After all, if the storage company leaks the CO2, the capture company would be the responsible entity in the eyes of the IRS, since they were awarded the tax credit. The IRS thoughtfully allows for multiple CO2 storage contracts, as well as a string of contracts (say from a general contractor to subcontractors), but has only minimal rules about what liability the storage company is required to take on (“must include commercially reasonable terms and provide for enforcement of the party’s obligation”). As business hates ambiguity, I think this is a prime opportunity for investment-grade insurance solutions, like those from New Energy Risk, which can indemnify the capture company against leakage from storage.
    
4. Timing the Credit: Legislation states the 12-year period for claiming the credit starts when the equipment is originally placed in service. Some rejected comments sought to stretch the timeline, by delaying the ‘Placed in Service’ date to account for MRV plan approval or a commissioning ramp-up period. The current policy design rightfully incentivizes the fastest possible commissioning schedule.

5. Lifecycle Accounting Is Only for CO2: Some CO2 utilization pathways mitigate greenhouse gases other than CO2, and mitigation may be greater than the Qualified Carbon Oxide directly utilized. To comply with ISO 14044:2006, the IRS required lifecycle analysis reports (LCAs) to ensure the overall carbon utilization process was reducing greenhouse gas emissions, but expressly limited those LCAs to account for carbon oxides only for purposes of the tax credit. The credit volume is capped by carbon oxides that are captured rather than also including those that are mitigated. This is an admittedly messy area with many different processes. In particular, there are issues with defining system boundaries, defining a baseline, and verification generally. Overall, I doubt any of this nuance will contribute meaningfully to overall credit volumes since geologic storage projects will be much larger.

6. Defining Carbon Capture Equipment: Earlier drafts from the IRS had attempted to list the included and excluded equipment, which turned out to be confusing given the diversity of carbon capture technology and processes. The final regulations allow for inclusion of all equipment related to carbon capture up to the point of transportation.

7. What Is an Electric Generating Facility: One would think this is obvious, but some facilities, like combined heat and power facilities, may sell incidental electricity to the grid even if power generation isn’t their primary purpose. Many are not large enough to meet the 500,000 ton per year minimum requirement. The IRS defines these facilities by their MACRS asset classes, which are used in calculating depreciation. Since MACRS classes are well defined, this should put to rest any questions about which facilities have to meet the higher minimum capture volumes of an Electric Generating Facility.

8. Holding the Line on Tough EOR Regulation: The IRS appropriately held firm that enhanced oil recovery (EOR) operations had to have their MRV plans or ISO certifications in place before claiming the 45Q credit and could not do so on a provisional basis.

9. Expansively Defining a ‘Qualified Carbon Capture Facility’: A previous IRS document, Section 8 of Notice 2020-12, provided a broad definition for how to define a Qualified Facility. I applaud the IRS’s flexibility, allowing projects that share some features including:
   – common ownership
   – common loan agreement were planned under the same FEED study
   – share common operations and management
   – share infrastructure
   – are part of the same contractual offtake
   – are combined in regulatory permits and reporting
   – and/or are proximally located to qualify as a single unit.I see no compelling reason to disqualify facilities solely for being too small. Technoeconomics will dictate a minimally viable facility size, but I see no reason for the IRS to put its thumb on that scale. However, Placed–In–Service requirements will still require any distributed projects to be commissioned simultaneously, which I think will limit the utility of this broad definition.
10. Slammed the Door on Photosynthesis and Soils as “Direct Air Capture” and “Secure Disposal”: For proponents of photosynthesis and soil carbon as climate solutions, ‘direct air capture’ sounded like plants and regenerative agriculture sounded like ‘secure storage.’ The IRS rejected these comments and preserved the Congressional intent of the tax credit to support ambient capture facilities and geologic storage in deep formations, not soils.

11. Lookup Period is Shortened: Any CO2 leakage is deducted on a last-in, first-out basis. Earlier rules provided a five–year lookback period for ensuring geologic storage, but the IRS shortened this to a three-year period. Class VI storage sites are not exempt from recapture requirements. The shorter lookup should be helpful as it lowers the compliance burden on the taxpayer. Insurance solutions from New Energy Risk can mitigate this further. 

If you have additional questions about 45Q, we’d be happy to hear from you. Here at New Energy Risk, we are geared up to play a substantial role in helping to scaling new carbon capture technologies. So for us, the finalization of 45Q is the bedtime reading we’ve been waiting for. And now we can finally get some rest. 

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