Real Estate & Property Law

Federal Task Force on Carbon Capture and Sequestration Issues

By Alan Ackerman

CPR Blog

In order to store the billions of tons of CO2 a kilometer below the surface over millions of acres (which is what will be required to use CCS as a viable climate change mitigation technology) lawmakers will need to address the extent to which that subsurface pore space is in private ownership and, if so, how to acquire it. The Fifth Amendment provides that private property can only be taken for a public use, and that just compensation must be paid. So the questions are, first, is there a protectable property interest in subsurface pore space that triggers the takings clause in the first place and, if so, will a government action to use, allow someone else to use, or place restrictions on that pore space be a taking of such property that requires just compensation?    

Alexandra Klass has it right.  It truly is an issue of how to pay and what to pay for property rights underground.  Further, there will be debates in the various states as to whether the rights are maintained by the mineral owner, the production developer, or the owner to the land.  These will offer substantial issues for years to come. 
 

Full post as published by National Eminent Domain Blog on May 27, 2010 (boomark / email).