University of San Diego

San Diego Journal of Climate & Energy Law


Keith B. Hall

Library of Congress Authority File


The United Nations Intergovernmental Panel on Climate Change and numerous individual governments have concluded that largescale use of carbon capture and storage (CCS) is vital as one tool to address climate change, even as society transitions to renewable sources of energy. CCS is important because transitioning to renewable sources of energy takes time and because some industries (e.g., cement making) release carbon dioxide (CO2) without regard to the source of energy used.

But in the United States, and perhaps in other countries, CCS raises property rights issues that—if left unresolved—could complicate a ramp-up of CCS. For example, after someone “captures” CO2 and a CCS developer injects it underground for permanent “storage,” using an injection well that the developer owns on the surface of Blackacre, the CO2 will migrate laterally. Eventually, it will enter the subsurface of neighboring tracts, such as Whiteacre. The ad coelum doctrine teaches that the owner of Whiteacre owns the entire subsurface beneath her land, all the way to the center of the earth. A CCS developer could offer to purchase or lease subsurface rights from her, but she might remain a “holdout” who refuses to consent to the use of her subsurface. Could the owner of Whiteacre block a CCS project by obtaining an injunction to bar injections that would cause a subsurface trespass of CO2?

CCS projects are expensive, and investors generally will not commit money to an expensive project unless there is certainty that the project’s proponents have, or at least have the ability to secure, all the property rights that they need to proceed with a project. Thus, if society is going to deploy CCS on a widespread basis, the law must prevent holdout landowners from blocking projects that may be critically important for society as a whole. This article demonstrates that existing law includes multiple models that already are used in other contexts to prevent holdouts from blocking socially useful projects, while compensating those would-be holdouts. This article reviews those various models and discusses the relative merits of each.