Summary/Abstract
This report, prepared for the Interstate Oil and Gas Compact Commission (IOGCC) Geological CO2 Sequestration Task Force, identified three working models that can provide technological and regulatory guidance for CCS: (1) injection of CO2 into underground formations for enhanced oil recovery (EOR) operations, (2) storage of natural gas in geologic reservoirs, and (3) injecting acid gas into underground formations. Legal paradigms associated with storage of natural gas in geologic reservoirs are most closely related to activities expected to occur in CCS projects. This paper discusses how various states address subsurface property rights and liabilities of parties engaged in and affected by activities involving the use of underground pore space for carbon storage, and also analyzes the case law relating to natural gas storage as a compatible analog to these CCS legal issues. The report argues that even though natural gas is stored for relatively short periods of time and carbon dioxide likely will be stored for very long periods of time, the storage time should not impact determining who has legal interests in the structure used for storage and how a regulatory program should treat them. Because the law recognizes an ownership interest in subsurface pore space, a regulatory program that manages storage (as opposed to water protection) should include clear rules about how these rights will be recognized and protected as well as a process for assuring that the legal property right to store CO2 is secured. Based on the foregoing review of subsurface property law, CCS statutes and rules would best serve the public by clearly declaring that CCS is an important activity for the public interest, clearly identifying the surface owner as the person with the right to lease pore space for storage, while protecting other stakeholders from potential damage attributable to sequestration activities.