Correlative Rights and Limited Common Property in the Pore Space: A Response to the Challenge of Subsurface Trespass in Carbon Capture and Sequestration

• Date: 01 May 2017

47 ELR 10420 ENVIRONMENTAL LAW REPORTER 5-2017

A R T I CL E S

Correlative Rights

and Limited

CommonProperty

in the Pore Space:

A Response to the

Challenge of

Subsurface Trespass

in Carbon Capture

and Sequestration

by Tara K. Righetti

Tara K. Righetti is an Assistant Professor of Law and

Director of the academic program in Professional

Land Management at the University of Wyoming.

Summary

Carbon dioxide and other substances injected as part of

carbon capture and sequestration (CCS) have the poten-

tial to migrate beyond the connes of the injection proj-

ect, creating the potential for trespass. In order for CCS

to be viable, legal clarity on the issue of subsurface trespass

is required. is Article argues that the challenge of sub-

surface trespass associated with CCS can be overcome by

conceptualizing pore space rights in the storage complex

as limited common property with rights of proportionate

use. e traditional oil and gas framework of correlative

rights can be a valuablemodelto promote investment,

encourage private ordering, and discourage the underuti-

lization of subsurface property for CCS.

The web of interests conveyed by property owner-

ship becomes increasingly tangled as one ventures

deeper into the subsurface.1 An owner’s rights to

exclude others and to extract economic rent for use of the

property are chief among the tenets of private ownership,2

yet courts have been wary of extending an absolute right of

exclusion to subsurface invasions resulting from the trans-

boundary migration of substances.3 Subsurface trespasses

resulting from climate mitigation technologies create a

perfect storm of problematic property law issues: fugacious

substances, questionable assertions of physical possession,

ambiguous damages resulting from anticipated injuries,

and compelling public purposes.4

Faced with these issues, courts have conated the doc-

trines of trespass and nuisance through the application of

a “modern view” of trespass to subsurface intrusions.5 is

1. Craig Anthony (Tony) Arnold, e Reconstitution of Property: Property as a

Web of Interests, 26 H. E. L. R. 281 (2002).

2. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-46

(1982) (“e power to exclude has traditionally been considered one of the

most treasured strands in an owner’s bundle of property rights.”).

3. Owen L. Anderson,      

Castle, 49 W L.J. 247, 248-49 (2010) [hereinafter Subsurface “Tres-

pass”]; Owen L. Anderson, 

Space?, 9 W. L. R. 97, 99 (2009) [hereinafter ]; Alexandra

B. Klass & Elizabeth J. Wilson, Climate Change, Carbon Sequestration, and

Property Rights, 2010 U. I. L. R. 363, 365 (2010).

4. See, e.g., Joseph W. Bingham, 

I, 13 M. L. R. 7 (1915); Richard A. Epstein, Possession as the Root of

Title, 13 G. L. R. 1221 (1979); Charles T. McCormick, 

Anticipated Injury to Land, 37 H. L. R.  (1924).

5. Adams v. Cleveland-Clis Iron Co., 602 N.W.2d 215, 220 (Mich. Ct. App.

1999):

e eects of recent trends in the law of trespass have included

eliminating the requirements of a direct invasion by a tangible ob-

ject, requiring proof of actual and substantial damages, and weigh-

ing the plainti’s damages against the social utility of the operation

causing them. is so-called “modern view of trespass” appears,

with all its nuances and add-ons, merely to replicate traditional nui-

sance doctrine.. .. Indeed, the trends recognized or advanced by

Bradley, Borland, Martin, and their kindred spirits have conated

nuisance with trespass to the point of rendering it dicult to delin-

eate the dierence between the two theories of recovery.



the School of Energy Resources. Valuable comments were received

from Keith Hall and the faculty and students at Louisiana State

         



is research builds upon the excellent work of Profs. Alexandra

Klass and Elizabeth Wilson on the subject of carbon capture and

       

Kramer, and Keith Hall on the subject of subsurface trespasses.

Any new insights presented here would not have been attainable

without the comprehensive foundations provided by their research.

Alex Ritchie, Sam Kalen, and Jason Robison all provided insightful



provided excellent research assistance. I thank Chris Rynders and

ELR and its sta for their editorial assistance.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

5-2017 NEWS & ANALYSIS 47 ELR 10421

amalgamation recognizes the permanent, physical occupa-

tion of the subsurface property as a trespass, yet requires a

dicult-to-achieve demonstration of harm or loss of use in

order to justify a damage award.6 Further, though courts

have preserved the option, injunctive relief is rarely grant-

ed.7 us, subsurface trespasses resulting from migration

of injected substances are rarely actionable in a way that

provides meaningful relief. As a result, the ability to rem-

edy violations of the right of exclusion in the subsurface has

become increasingly tenuous.

An examination of the diculties presented by subsur-

face trespasses suggests the need for an evolving conceptu-

alization of subsurface property. Non-mineral subsurface

reservoirs hold enormous potential for addressing some of

the challenges of climate change through carbon capture

and sequestration (CCS).8 e diculty of exalting both

rights of exclusion and rights of use in the subsurface pore

space—particularly in the non-hydrocarbon pore space—

is that the most evident uses of pore space are intrinsically

resistant to connement within a specic column of space.9

Reservoirs operate holistically, without regard to property

or geopolitical boundaries.10 While geologists may be able

to predict the path of a plume, or to steer it, over time,

the reservoir will seek to diuse any injected material and

stabilize pressure.11

ere is also some confusion about whether the doctrines of nuisance

or strict liability should apply. See Bruce M. Kramer, 

, 25 C.

N. R, E  E. L. R. 291, 313-14 (2014) (“e

wild card in this analysis [of whether hydraulic fracturing results in an

actionable trespass] is whether or not a jurisdiction will apply the strict or

absolute liability standard of Rylands v. Fletcher.”). Although the challenge of

demonstrating damage would still apply, whether a strict liability standard

could apply to migration of carbon dioxide (CO2) outside a carbon capture

and sequestration (CCS) storage reservoir is beyond the scope of this Article.

6. Anderson, Subsurface “Trespass,”supra note 3, at 207.

7. Id. at 207, arguing for a restrained use of injunction(“In circumstances

where a landowner or mineral owner suers actual and substantial subsurface

damages, courts should generally limit relief to money damages and deny

injunctive relief or ejectment.”); Kramer, supra note 5, at 302 (citing Gregg

v. Delhi-Taylor Oil Corp., 344 S.W.2d 411 (Tex. 1961); Deli-Taylor Oil

Corp. v. Holmes, 344 S.W.2d 411, 416 (Tex. 1961)).

8. Klass & Wilson, supra note 3, at 372 (“CCS is emerging as a potentially

promising but potentially contentious technology that could enable the

continued use of fossil fuels while still allowing society to dramatically

reduce accompanying [greenhouse gas] emissions.”); I’ E A,

C C  S: L  R R 4

(2014).

9. Id. at 381 (“[t]here is the real potential for CCS operations to interfere

with actual or reasonably foreseeable uses of subsurface pore space and,

consequently, subsurface property rights”).

10. James Robert Zadick, e Public Pore Space: Enabling Carbon Capture and

Sequestration by Reconceptualizing Subsurface Property Rights, 36 W. 

M E. L.  P’ R. 257, 260 (2011) (citing N’ E T.

L., U.S. D’  E, 2010 C S A  

U S  C 23-33 (3d ed. 2010)).

11. U.S. E. P. A, T S D,

V E F  G S

 C D 53 (2008) (EPA430-R-08-009), available at https://

is in turn suggests that the business of parsing mol-

ecules in order to uphold an absolute right of exclusion

is unwise, and could create an insurmountable obstacle

to carbon capture projects. Injectors will be unwilling to

make the signicant investments required for carbon stor-

age as long as there exists the potential for injunctive relief

or ejectment.12 Accordingly, property owners will para-

doxically be neither able to make full use of their property

for carbon storage nor to fully preclude intrusions by oth-

ers, thus deterring innovation and investment.13 erefore,

responding to what Prof. David E. Pierce refers to as “the

modern property analysis imperative,” concepts of prop-

erty in the non-mineral subsurface should be adapted to

reect characteristics inherent to the property’s use.14

is Article argues that in order to facilitate the signi-

cant public good of carbon capture projects, pore space

rights in the deep subsurface should be conceptualized

based on the acknowledgment that “compartmentalized

ownership of the reservoir is impossible.”15 Doing so per-

mits consideration of deep subsurface pore space owner-

ship as something akin to what Prof. Carol Rose refers to

as “limited common property.”16is concept would create

a legal privilege granting each owner within the reservoir

community a right of proportionate use.17 Accordingly,

rather than treating ownership as exclusive, the rights

of each owner within the private interconnected storage

complex would be shared among members of the reser-

voir community based on principles of proportionate and

coequal rights of use.

As Professor Pierce notes, the concept of correlative

rights ts neatly within the framework of limited common

property.18 Correlative rights refers to the notion that each

www3.epa.gov/climatechange/Downloads/ghgemissions/VEF-Technical_

Document_072408.pdf); Klass & Wilson, supra note 3, at 365.

12. Anderson, Subsurface “Trespass,”supra note 3 at 206-07 (“[t]he most serious

threat to ecient and utilitarian use of the subsurface is the possibility of

injunctive relief or ejectment”).

13. Zadick, supra note 10,at 267 (citing Jerry R. Fish & omas R. Wood,

Geologic Carbon Sequestration, Property Rights, and Regulation, 54 R

M. M. L. I. 3-1, 3-19 (2008)) (“e sort of large-scale CCS needed

to mitigate continued and increased reliance on fossil fuels cannot begin

without a clear delineation of the legal property interests involved.”).

14. David E. Pierce, 

Applied to Modern Reservoir Problems, 19 P. S. E. L. R. 241, 259-

60 (2011). For a discussion of an adaptive approach to property interests in

other contexts, see Arnold, supra note 1; Carol Rose, 

in the Realignment of Water Rights, 19 J. L S. 261 (1990).

15. Pierce, supra note 14, at 244.

16. Id. (citing Carol M. Rose,      

and Folk Tales, Emission Trades, and Ecosystems, 83 M. L. R. 129, 132

(1998)).

17. Id. at 254 (citing 1 W.L. S, T L  O  G 180 (1954)).

Rather than creating what Professor Summers describes as a “legal privilege

as against other owners of land therein to take oil and gas therefrom”—

permitting withdrawal without conversion, a legal privilege in the non-

mineral pore space would grant other owners within the storage complex a

privilege to ll through injection—permitting storage without trespass.

18. Id. at 245-46.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.