The Concurrent Use of Land for Carbon Sequestration and Mineral Development

Abstract

As carbon capture and sequestration projects gain momentum across the United States, questions about the coordination of sequestration with mineral extraction—especially oil and gas development—are growing in urgency. Using many of the same technologies, these two marvels of modern ingenuity aim to exploit the same subsurface resources for different purposes: one to bring out the hydrocarbons and the other to put away the byproducts of their combustion. From needing to drill through each other’s operations to reach deeper strata, to competing for the use of reservoir storage space (“pore space”), mineral development and carbon sequestration projects are sure to clash, and disputes are sure to follow. Landowners, developers, policymakers, lawyers, and courts all have an interest in coordinating these two subsurface industries. To do so, they need look no further than the traditional principles of the common law. This Article presents a detailed account of the common law principles that govern the use of land for the concurrent development of multiple natural resources and constructs a conceptual and analytical framework for applying these principles to coordinate sequestration and extraction. It seeks to show how traditional doctrine can guide not only the adjudication of disputes but also the ex-ante decision-making of sequestration and mineral developers trying to use their property harmoniously without resorting to the courts.

Keywords: carbon sequestration, carbon storage, CCS, oil and gas, minerals, mining, real property, tort