Property interests and liability of geologic carbon dioxide storage

Topic(s): CO₂ storage, Liability

Carbon dioxide capture and storage involves the capture of carbon dioxide from a stationary source and injection into a suitable storage site. Increasing attention is being paid to the use of geologic formations as storage reservoirs for captured carbon dioxide. Property interests play a role in determining the cost of geologic storage through the acquisition of necessary geologic reservoir property rights and the value of storage through ownership of injected carbon dioxide. The determination of the ownership interest for the storage reservoir depends on whether carbon dioxide is being injected into a mineral formation, including depleted oil and gas reservoirs, unmineable coal seams, and oil reservoirs for enhanced oil recovery, in which case ownership determination is based on mineral law, or whether carbon dioxide is being into a deep saline formation, in which case the determination of property interests is influenced by water law. Acquisition of ownership rights over the formation may be done by voluntary methods, eminent domain, or adverse possession. Ownership over injected carbon dioxide will depend on whether a state subscribes to the ownership or non-ownership theory of injected gas. Liability concerning property rights may derive from several theories, including geophysical surface trespass, geophysical subsurface trespass, or liability from commingling of goods. Legislation on the state or federal level concerning property interests and eminent domain power may provide clarification over property interests and liability of geologic storage of carbon dioxide.

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