Carbon Capture and Storage in South Dakota: The Need for a Clear Designation of Pore Space Ownership
![handle is hein.journals/sdlr55 and id is 80 raw text is: CARBON CAPTURE AND STORAGE IN SOUTH DAKOTA: THE NEED
FOR A CLEAR DESIGNATION OF PORE SPACE OWNERSHIP
BLAYNE N. GRAVEt
Carbon capture and storage is a promising new tool to combat climate
change whereby carbon dioxide is pipelined underground into a geological
reservoir for permanent storage. Momentum is growing in support of carbon
capture and storage at the federal level and has been addressed by states
neighboring South Dakota. However, carbon capture and storage projects pose
a number of unanswered issues, one of the most important of which is subsurface
pore space ownership. Property rights are generally functions of state law, and
South Dakota has not yet addressed this issue. The uncertainty with how pore
space property rights will be recognized in South Dakota impedes the
development of carbon capture and storage projects within the state and
prevents the creation of a new, valuable use of land This comment considers
surrounding state legislation on pore space ownership and examines existing
subsurface case law in South Dakota to support the notion that pore space
ownership should rest with the surface estate.
I. INTRODUCTION
Carbon capture and storage (CCS) is a process by which carbon dioxide is
captured before it is released into the atmosphere and pipelined underground
for permanent storage in subsurface geologic reservoirs.' Climate change is a
driving force behind development of carbon capture and storage. Pending
climate change legislation creates incentives for CCS by establishing a cap-and-
trade system to reduce carbon dioxide emissions.4 It is possible that the United
t J.D. Candidate, Class of 2011, University of South Dakota School of Law; B.S., 2004, University of
Minnesota. The author would like to thank Joe Nadenicek for his topic suggestion and guidance
throughout the writing process; Derric lies for his technical expertise; Dean Barry Vickrey for his
guidance in legislative drafting and editing; Professor Elizabeth Burleson, Alex Hagen, Brooke Swier,
and Jay Zenor for their help during the editing process; and, last but not least, the author would like to
thank her parents, Roger Damgaard, and Alex Hagen for their encouragement and support.
1. David J. Hayes & Joel C. Beauvais, Carbon Sequestration, in GLOBAL CLIMATE CHANGE AND
U.S. LAW 691, 692 (Michael B. Gerrard ed., 2007).
2. Larry Nettles & Mary Conner, Carbon Dioxide Sequestration - Transportation, Storage, and
Other Infrastructure Issues, 4 TEX. J. OIL GAS & ENERGY L. 27, 27-28 (2008-2009).
3. The following is a useful explanation of how a cap-and-trade system works:
Cap-and-trade systems set an overall cap on the amount of a given pollutant that can be emitted
during a specified period of time. They then allocate portions of that cap to the various emitters
so that the sum of these allocations equals the cap. These allocations take the form of
allowances, which are essentially permits to emit a given amount of pollution. Cap-and-trade
programs require that at [the] end of a specified compliance period, each facility must hold the
rights to enough allowances to cover its emissions for that period. Facilities can meet this
requirement by reducing their emissions to the level of their allocation. Or, they can purchase
emission permits from other sources that have reduced their emissions below their own
allocation and so have excess allowances to sell. Sources that can figure out how to decrease
their emissions cheaply will usually reduce to a level below their allocation so that they can sell](ViewImageLocal?handle=hein.journals/sdlr55&div=8&collection=&method=preview&ext=.png&size=3)
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Carbon Capture and Storage in South Dakota: The Need for a Clear Designation of Pore Space Ownership
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