Geologic CO₂ Sequestration and Subsurface Property Rights: A Legal and Economic Analysis

Carbon dioxide emissions (CO₂) from the combustion of fossil fuels must be reduced on a large scale to mitigate the effects of global climate change. Carbon capture and sequestration (CCS) has the potential to allow the continued use of fossil fuels with little or no emissions until alternative, low-to-zero emission sources of energy are more widely deployed. This thesis considers the legal and economic implications of securing the right to use geologic pore space—the microscopic space in subsurface rock matrixes—in an effort to sequester CO₂ deep underground to mitigate climate change. The findings and conclusions drawn in this thesis are intended to help guide discussion, research, and decision-making processes undertaken by policymakers and industry leaders with respect to the commercial-scale deployment of CCS. Prior to the commencement of sequestration, a project developer/operator must have authorization to access and use pore space to avoid liability for subsurface trespass. This authorization can be acquired via bilateral contract, where monetary compensation is remitted to the property owner in exchange for the right to use pore space. However, the question remains open as to whether the use of pore space for geologic CO₂ sequestration (GCS) is a trespass requiring compensation under the law. In fact, there is ample legal precedent in the context of underground injection activities such as enhanced hydrocarbon recovery, fluid waste disposal, and freshwater storage to support the supposition that the invasion of pore space by injected is compensable only when substantial harm or interference with an existing or non-speculative, investment-backed future use of the subsurface results from the injection of such fluids. This thesis shows that if CCS is widely deployed, the cost of electricity and power plant profitability could be adversely affected by a legal requirement that pore space owners must be compensated for GCS in all circumstances. Moreover, absent unrealistically high electricity prices or some form of sequestration subsidy, pore space has no net-positive, intrinsic economic value to electric generators that can be passed along to property owners. Therefore, while paying property owners to use of pore space for geologic CO₂ sequestration may very well foster public acceptance and appease staunch private property rights advocates, there is no demonstrable legal or economic rationale for compensating property owners who have no current or nonspeculative, investment-backed future use of the subsurface where pore space targeted for sequestration is located. A pragmatic and equitable solution for constraining the potential negative economic effects associated with acquiring pore space rights would be for state or federal legislatures, or courts, to limit required compensation to only those instances where the injection and migration of CO₂ materially impairs current or non-speculative, investment-backed future uses of the subsurface. Future work should include a detailed analysis of takings law and the anticipated long-term constitutional and economic implications of various approaches to pore space property rights governance before new CCS-specific laws are enacted. The models presented in this thesis should also be applied to additional site-specific geologic data for saline aquifer sequestration targets. Additionally, the implications of GCS paired with enhanced oil recovery (EOR) on power plant economics should be studied.