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Pore space illustration: Chevron Corporation
By: Peggy Kirk Hall, Tuesday, October 29th, 2024

Part 2 in our series on Carbon Capture and Storage

If you’re a landowner, you may hold a valuable property interest that is gaining attention across the country: pore space.  Pore space is the empty space between the particles of soil, sand, rock, and sediment beneath the surface of your land.  It’s a geological formation that, if large enough, can store gas, brine water, and similar substances. Why the recent interest in pore space? It’s a necessity for Carbon Capture and Storage (CCS)—a technology that removes carbon dioxide (CO2) from emission sources and stores it in pore space far beneath the land’s surface.

We began this series on CCS with an overview of the technology and why it’s gaining traction in Ohio.  See our first post on the Ohio Ag Law Blog.  This second post focuses on legal issues related to pore space. The capacity to store COin the pore space beneath the surface is a property interest that may have value to landowners—one that could be sold or leased to another party for CCS or other storage purposes.  But before pore space transactions occur in Ohio, the General Assembly must address a few legal issues:  clarification of pore space ownership, whether and how pore space interests can be severed and conveyed, and the relationship between a severed pore space interest and surface and mineral interests. Here’s why these are important legal needs.

  1. Ownership of pore space.   A golden rule of property law partly answers the issue of pore space ownership in Ohio:  the “ad coleum” doctrine.  The doctrine states that the owner of land owns the rights above and below the land, from the sky to the earth’s core. The assumption under this common law rule, then, is that a landowner owns all subsurface pore space.  But what if the pore space is created as a result of a particular activity, like mining?  While a few court cases in Ohio have followed the ad coleum doctrine and recognized pore space ownership as an attribute of surface ownership, there have been inconsistent court rulings on the question of ownership of pore space resulting from mining activities.  The rulings drive a need for the Ohio legislature to clarify pore space ownership issues, first by codifying the ad coleum doctrine and stating that a surface owner also owns the pore space beneath the surface.  Second, statutory law could state whether the surface or mineral owner holds the right to pore space resulting from mineral extraction.  If Ohio follows the general rule on mineral extraction adopted among other states, Ohio law would state that the surface owner retains the right to pore space after minerals are fully extracted.
  2. Severance, conveyance, and recording of pore space interests.  Can a surface owner sever the rights to pore space and convey the interest to another party, as Ohio law allows with mineral interests?  That’s another legal question in need of clarification in Ohio. The legislature could establish the right to sever pore space and adopt the same conveyancing and recording standards we utilize for tracking other property interests in Ohio.
  3. Conflicts with other property interests.  Can pore space owners interfere with mineral and surface ownership interests by taking actions such as establishing a CCS well on the surface to store CO2 in the pore space?  Which property interest has priority over the others if there is a conflict?  Our courts can address legal questions as they arise but the Ohio legislature has the power to clear up the relationship between these property interests through statutory law. In particular, Ohio law should establish the priority of rights between the surface, pore space, and mineral interests and answer which is dominant over another when there is a conflict.

Will the legislature tackle these pore space issues that arise with the potential of CCS in Ohio?  Possibly, but probably not until the next legislative session begins in January.  There are currently proposals in both chambers of the legislature that simply declare an “intent to regulate carbon capture and storage technologies and the geologic sequestration of carbon dioxide for long-term storage,” House Bill 358 and Senate Bill 200, but those bills do not yet contain any detailed language and they will die if not passed by year’s end.  With few days remaining in the legislative session this year, the bills are not likely to see any action.  There will likely be new versions of the bills introduced next year, however, if the interest in CCS in Ohio continues.  Hopefully, the proposals will answer our legal questions about pore space as a property interest of Ohio landowners.

By: Peggy Kirk Hall, Tuesday, October 22nd, 2024

One thing we're not short on in agriculture today is the opportunity to engage in carbon sequestration programs. Many programs are available that offer to pay farmers and landowners for adopting practices that sequester carbon dioxide to keep the pollutant out of the atmosphere.  The practice aims to reduce greenhouse gas (GHG) emissions, as carbon dioxide is a significant contributor to GHG.  Farming practices that sequester carbon include using cover crops, adopting no-till, and planting trees. 

If you're considering a carbon sequestration or carbon credit program, what do you need to know about carbon sequestration?  An upcoming program offered by OSU Extension's Energy Outreach Program will offer insight into carbon sequestration. Join us on October 29, 2024 at 8 a.m. for a webinar on "Carbon Sequestration for the Farmer and Landowner" and hear from these three panelists:

  • Michael Estadt, Assistant Professor & Extension Educator, Pickaway County
  • Peggy Kirk Hall, Attorney & Director, Agricultural & Resource Law Program
  • John Porter, Outreach & Partnership Liaison,Truterra, LLC

The panel will highlight important issues and considerations for farmers and landowners interested in carbon sequestration. Pre-registration is not necessary; simply join the webinar through this link:  go.osu.edu/carbon2024.

Contact Dan Lima at lima.19@osu.edu or call the OSU Extension office in Belmont Co. (740) 695-1455 for more information. 

 

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