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6 Tex. J. Oil Gas & Energy L. 399 (2010-2011)
Carbon Capture and Sequestration in Texas: Navigating the Legal Challenges Related to Pore Space Ownership

handle is hein.journals/texjogel6 and id is 403 raw text is: CARBON CAPTURE AND SEQUESTRATION IN TEXAS: NAVIGATING THE LEGAL CHALLENGES RELATED TO PORE SPACE OWNERSHIP CHRISTOPHER J. MILLER* I. INTRODUCTION .................................................... 400 II. THE TEXAS LEGISLATURE NEEDS TO ADDRESS PORE SPACE OWNERSHIP ................................................... 401 III. TEXAS SHOULD GRANT PORE SPACE OWNERSHIP TO THE SURFACE ESTATE .................................................. 403 A. Case Law Does Not Definitively Settle Pore Space Ownership in Texas ....................... ...... 404 B. Pore Space Ownership in the Surface Estate Would Best Accomplish the Long-Term Goals of CCS............................. 405 C. Regulatory Action is Needed to Clear a Path for CCS.........409 1. Domestic Oil and Gas Production Should Take Precedence Over CCS......... ....................... 409 2. Income Received for Injected CO2 Should Be Included in Determining Production in Paying Quantities ................................. 410 3. Compulsory Unitization Would Promote C02-Based EOR ....................................... 411 4. Texas Could Extend Eminent Domain to Anthropogenic CO2 Storage............ . ................... 412 IV. THE RISK OF LIABILITY RELATED TO CCS AND PORE SPACE OWNERSHIP IS LIMITED ............................ ....... 414 A. The Safe Drinking Water Act of 1974 Establishes a Permitting Regime ....................................... 415 B. Migration of Injected CO2 IS Unlikely to Create Trespass Liability..................................... 417 C. The Risk From Other Potential Sources of Common Law Liability is Limited ............................. 419 D. Long-Term Financial Responsibility for Site Monitoring * Chris Miller is the outgoing Chief Financial Officer of the Texas Journal of Oil, Gas, and Energy Law. Chris joined TJOGEL as a Staff Editor in the spring of 2009 and served as Treasurer from 2009-2010. He grew up in Longview, TX and graduated from the University of Texas at Austin in May 2008 with a B.B.A. in Finance. Chris recently graduated from the University of Texas School of Law in May 2011 and will join Bracewell & Giuliani LLP in the fall of 2011 as a transactional associate.

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