Summary/Abstract
The paper explores property rights and financial considerations for carbon capture and storage (CCS). Upon examining financial incentives behind CCS, the authors note that specific factors that drive CCS: (1) Offsetting emissions, including mandatory greenhouse gas emissions reduction programs; (2) tax incentives; (3) federal regulations defining “sustainable aviation fuel” also encourage CCS deployment in ethanol production.
The paper then discusses the pore-space requirements for CCS projects and the surrounding questions on property rights and ownership. At a minimum, a CCS project developer must obtain rights to use enough pore space to contain the anticipated CO2 plume, and with it comes issues of ownership. The paper attempts to clarify these issues, noting that the severance of mineral and estate rights has caused further complications. While most courts, particularly in recent opinions, have held the surface owner also owns the underlying pore space, some states have decided otherwise. The paper highlights these opinions, and concludes with recommendations and considerations for pore space acquisitions.