Property rights in relation to CCS

Topic(s): Liability, Permitting, Policy law and regulation

• Overview
• Relevance to CCS
• What are the key applicable laws and principles?
• Key legal issues concerning CCS

Overview

The concept of property is concerned with the ownership of tangible or intangible things. Property rights can be conceived of as a bundle of rights that include, in addition to the right to own, the right to use and the right to enjoy. Property law comprises the rules and principles governing these proprietary rights. Legal principles concerning property often vary between different national and sub-national jurisdictions, but there are common concepts and questions that need to be asked when dealing with CCS issues.

Law uses the term 'property' in a number of different ways. 'Real property' refers to property of the land and anything growing on it, attached to it or built on it. Real property includes the physical property of the land, such as soil, and fixed assets such as buildings. More importantly, it includes legal rights concerning the land, such as a right of way or the right to extract minerals. Private property can refer to tangible assets over which the owner has exclusive and absolute rights, such as the wellhead equipment at a CO₂ injection operation. The last is public property, which is not restricted to any one individual's use or possession and is owned by a public body. Intellectual property comprises commercially valuable products of the human intellect, such as a patentable capture technology. Though relevant to the commercial development of CCS, it will not be discussed in this section.

Relevance to CCS

Property rights are a key legal aspect of CCS operations. Determining property interests at a storage site is essential to acquiring the necessary surface and subsurface rights for injecting and storing CO₂ in the target geological formation. Where CO₂ is transported to the site by pipeline, property rights for constructing pipeline infrastructure must also be considered. The process by which property rights are granted to an operator can affect the cost of the overall CCS operations. Establishing how these rights are acquired, maintained or transferred over the lifetime of the project has implications for managing the liability for CCS projects. Liability for CO₂ during the active injection phase of a project generally lies with the operator, who must have a right to store in the subsurface formation into which the CO₂ is being injected. The right to this storage plus the stored CO₂ must follow the entity that takes on the long-term stewardship of the storage site, whether it remains with the operator or is handed over to the state.

The legal treatment of property rights for CCS is frequently based on regimes governing property rights for natural resources. Mineral rights regimes are of particular interest given the analogous nature of oil and gas operations to CO₂ transport and storage activities. Water rights are also pertinent since underground saline formations have significant potential for large-scale storage.

What are the key applicable laws and principles?

Land ownership

Historically, real property rights were based on the traditional principle that the owner of a piece of land owns everything above it and below it to an infinite extent. (This is the Cuius est solum, eius est usque ad coelum et ad inferos maxim, meaning 'whoever owns the soil, it is theirs up to Heaven and down to Hell' normally called the 'ad coelum doctrine'.) Thus, the owner of a piece of land would have exclusive rights to the surface and also any subsurface mineral interests. A mineral interest constitutes the rights to search for, develop and remove minerals from the subsurface. The surface estate includes all the rights to the real property of the land excluding the mineral interest. It can include subsurface substances not deemed to be minerals, such as gravel or water resources.

Property rights have evolved, and often the mineral interests have become separated from the ownership of the surface either through outright sales or a lease, resulting in different owners of each. In many jurisdictions, such as Australia, many countries of the European Union and Latin America, the mineral interest is vested in the state, resulting in no private ownership of minerals. In these jurisdictions, the state grant licences for the exploration and extraction of minerals beneath a surface owner's land. In a country such as the United Kingdom some minerals (coal, gas, gold and silver) have been acquired by the State under legislation, but other minerals remain with the landowner. Conversely, in the United States, all mineral interests in principle are privately held and cannot be expropriated by the state without compensation.

In the context of CCS, the most important component of the property interest is the subsurface pore space. In simple terms, pore space is the geological formation where CO₂ is stored. With regard to storage in depleted hydrocarbon reservoirs, the ownership of the geological formation varies between jurisdictions. In some jurisdictions, such as Canada, ownership of the geological formation remains with the owner of the mineral interest after the minerals have been extracted. In others, such as in many US states, ownership of the geological formation remains associated with the surface estate. In jurisdictions where the mineral interest is owned by the state, pore space is typically also vested in the state, though this is not always clearly specified by existing laws. In some jurisdictions, legislation has now been passed to make clear that the state owns the pore space, for example, in the Province of Alberta in Canada.

Where mineral rights are in principle vested in the owner of the land but are now held by someone else (either through a sale or a lease), difficult legal questions can arise as to who owns the pore space for storing CCS - the owner of the mineral rights or the original landowner? Similar questions can arise for storage in saline formations, though the ownership of pore space in this type of formation may follow ownership of water resources more generally. In any event, it is likely to be important to look at the precise terms of the sale or lease of mineral interests relating to individual storage sites to determine the exact circumstances.

Property rights in the marine environment differ from onshore. In deciding who owns storage rights below the sea bed, it will be important to distinguish between the territorial waters of a state and the high seas. For further information on offshore property rights and governance see the UNCLOS page.)

Land use

An owner of land may enjoy any kind of right over it, including creating subsidiary interests in the property that allow others to use or benefit from the land. There are a number of different types of subsidiary interests used in the CCS context:

• Lease: A conveyance of a possessory interest that gives the tenant the exclusive right to use and enjoy land for a specified period of time in exchange for some sort of remuneration (e.g. payment). Oil and gas production activities are typically carried out under a lease agreement. Similarly, some jurisdictions already have processes in place to grant leases for CO₂ storage sites (e.g. the United Kingdom);
• Licence: A grant of permission by the owner to an individual or entity to use the real property for a specific purpose. Unlike a lease, it does not transfer interest in the real property to the licence holder. It is not assignable and may be terminated or revoked by the owner at any time;
• Easement: The right of one estate owner to use or control the land of another for a specific limited purpose. Unlike a lease or licence, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land. A good example of an easement is the right-of-way granted by a landowner to build a CO₂ pipeline on private land; and
• Covenant: An agreement, usually in the form of a contract or deed between estate owners, that real property will be used in a certain way. A covenant may constitute a pledge to do something or refrain from doing something. A simple example of a covenant is the requirement to fence in surface installations at a CO₂ injection site.

Acquiring property rights

Property rights may be acquired through voluntary means, involuntary means or adverse possession. Where land is privately owned, the landowner can decide to sell it or lease the surface or mineral interest to another private entity. Similarly, interests in publicly owned land can be sold or allocated for use to a private entity. In other cases, without requiring the consent of the private landowner, the state may have the power to take private property for its own use or to authorise the use of private property by a third party. Depending on the legal regime, the state may have to compensate the landowner for the property. These involuntary means of acquiring private property have different terms in different jurisdictions: eminent domain, compulsory purchase/acquisition, resumption, and expropriation. Lastly, property may be obtained through adverse possession of another's land for a continuous and uninterrupted period of time.

Illegitimate entry and interference

Also relevant to the discussion of property rights and CCS are the property rights of adjacent landowners in the event of activities that infringe on the property of another. Examples could be unintended migration of CO₂ outside a selected storage area or impacts on a mineral resource from injected CO₂. A landowner or tenant enjoys protection from illegitimate entry onto or interference with his property. Any wrongful entry on his real property constitutes a trespass. Any activity or situation that interferes with his use or enjoyment of property constitutes a nuisance. The landowner may take legal action to seek to stop an activity deemed to be trespass or nuisance or to recover damages incurred. In the CCS context, some instances of trespass are unambiguous. For example, where mineral and surface interests are severed, unauthorised use of the surface to access the subsurface would be considered trespass. However, in a case where substances injected into the subsurface migrate unexpectedly to neighbouring land, determining whether trespass has occurred is less straightforward.

International legal context

International law does not generally regulate real property rights, leaving these issues to be dealt with under national law. As an example, international law is silent on whether natural resources should be held in either public or private ownership. However, international law does play a role in regulating the enjoyment of such property rights by foreign nationals within the host state's borders. This is found particularly in the field of foreign investment law and international human rights.

Despite its silence on how property rights over natural resources and land should be regulated, international law imposes some restrictions on the way a state exploits the natural resources that are either under its sovereignty, shared by multiple states or held in common by all states. General obligations to exercise due diligence and adopt a preventative/precautionary approach in the use of a state's territory are imposed under international law in order to avoid transboundary harm to the territory of other states. States' cooperation in conservation, sustainable utilisation, and environmental protection are also required with respect to the exploitation of shared resources or resources in areas beyond national jurisdiction.

Key legal issues concerning CCS

• Pore space ownership has yet to be clearly articulated in some jurisdictions, resulting in uncertainty for permitting CO₂ storage operations. In jurisdictions where the mineral interest is vested in the state, it is often assumed that the state also owns the pore space. However, governments that have declared ownership of valuable subsurface substances (e.g. coal and hydrocarbons), have allowed ownership of other subsurface substances to remain with the surface estate. For example, less valuable subsurface resources such as sand and limestone are sometimes associated with the surface estate. Therefore it is not necessarily clear that pore space would be automatically vested in the state just because there is no private ownership of the mineral interest. Some governments have resolved this issue by declaring that ownership of pore space is vested in the state. This was done, for example, in the Canadian Province of Alberta. In the United States, this type of declaration would not be possible without compensating landowners, since private ownership of the mineral interest is extensive.
• In many jurisdictions there is still no process for allocating CO₂ storage rights or granting access to the subsurface. This process must consider competing uses of the property in question, especially how to prioritise CO₂ storage rights versus oil and gas production.
• The duration of a right to store CO₂ is linked to the long-term liability of the storage operation. In the predominant model for managing liability, the liability is transferred to a public body after closure once a series of conditions have been met. Where the pore space was owned or leased by a private entity during the operational phase, the rights to the pore space will have to be transferred to the public body taking on the liability for the site.

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