5-2017 NEWS & ANALYSIS 47 ELR 10421
amalgamation recognizes the permanent, physical occupa-
tion of the subsurface property a s a trespass, yet requires a
dicult-to-achieve demonstration of harm or loss of use in
order to justify a damage award.6 Further, t hough court s
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 meaningfu l 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 cha llenges of climate change through carbon c apture
and sequestration (CCS).8 e diculty 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 connement within a specic 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 materia l and
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 suers 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-T
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
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 rig ht of exclusion
is unwise, and could create an insurmountable obstacle
to carbon capture projects. Injectors will be unwilling to
make the signic ant 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
reect 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 t he 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 t he reser-
voir community ba sed 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/clima techange/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 ecient 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
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.