The Property Problem: A Survey of Federal Options for Facilitating Acquisition of Carbon Sequestration Repositories
By Thomas Brugato
INTRODUCTION
This paper surveys federal options for facilitating carbon capture and sequestration (CCS), in both the demonstration and commercial phases. A variety of legal impediments must be addressed before CCS can become commercially viable. This paper examines one of those impediments: the need of sequestration entities to acquire large amounts of suitable subsurface property (pore space) for use as a repository. Currently, uncertainty over the ownership of the pore space as well as high transaction costs for acquiring property rights from numerous landowners present substantial obstacles for sequestration entities. The presence of other conflicting uses of pore space further complicates the acquisition of the necessary property rights. As a result, if CCS is to become a viable activity, the government will likely be required to take some action to facilitate acquisition of pore space by sequestration entities. This paper provides a survey of the range of options available to the federal government.
This paper grew out of the author's participation in the Harvard Law School's Emmett Environmental Law and Policy Clinic, which has produced a variety of white papers and policy proposals relating to CCS. Unlike the work of the Clinic, as well as other similar projects, the purpose of this paper is not to advocate for a specific proposal. Rather, the paper is designed to provide a comprehensive survey of the options available to the federal government, and a thorough assessment of the benefits and pitfalls of varying approaches.
The options surveyed include:
• Federal declaration of ownership over the entirety of the deep subsurface.
• Federal leases of offshore property to serve as carbon repositories.
• Federal establishment of regional repositories through the use of eminent domain.
• Granting the power of eminent domain to private entities to secure property for repositories.
• Granting the power of unitization to private entities to secure property for repositories.
• Establishing a default rate of compensation per unit of pore space acquired by eminent domain, to reduce acquisition costs, if an option utilizing eminent domain is chosen.
• Federal encouragement of state legislative action clarifying ownership of the pore space.
This paper surveys federal options for facilitating carbon capture and sequestration (CCS), in both the demonstration and commercial phases. A variety of legal impediments must be addressed before CCS can become commercially viable. This paper examines one of those impediments: the need of sequestration entities to acquire large amounts of suitable subsurface property (pore space) for use as a repository. Currently, uncertainty over the ownership of the pore space as well as high transaction costs for acquiring property rights from numerous landowners present substantial obstacles for sequestration entities. The presence of other conflicting uses of pore space further complicates the acquisition of the necessary property rights. As a result, if CCS is to become a viable activity, the government will likely be required to take some action to facilitate acquisition of pore space by sequestration entities. This paper provides a survey of the range of options available to the federal government.
This paper grew out of the author's participation in the Harvard Law School's Emmett Environmental Law and Policy Clinic, which has produced a variety of white papers and policy proposals relating to CCS. Unlike the work of the Clinic, as well as other similar projects, the purpose of this paper is not to advocate for a specific proposal. Rather, the paper is designed to provide a comprehensive survey of the options available to the federal government, and a thorough assessment of the benefits and pitfalls of varying approaches.
The options surveyed include:
• Federal declaration of ownership over the entirety of the deep subsurface.
• Federal leases of offshore property to serve as carbon repositories.
• Federal establishment of regional repositories through the use of eminent domain.
• Granting the power of eminent domain to private entities to secure property for repositories.
• Granting the power of unitization to private entities to secure property for repositories.
• Establishing a default rate of compensation per unit of pore space acquired by eminent domain, to reduce acquisition costs, if an option utilizing eminent domain is chosen.
• Federal encouragement of state legislative action clarifying ownership of the pore space.
