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Part 3 in our series on Carbon Capture and Storage

As expected, proposed legislation to allow for carbon capture and storage wells (CCS) was introduced this week in the Ohio General Assembly.  The legislation opens the door for CCS underground injection wells to store captured carbon dioxide in “pore space” or cavities far beneath the land’s surface. As we explained in Part 1 and Part 2 of our CCS series, CCS technology removes carbon dioxide from the atmosphere to reduce greenhouse gas emissions and can also trigger final production in an oil or gas field. If passed, the new law would affect agricultural landowners, who could be asked to lease their “pore space” for CCS projects.

The identical CCS bills introduced in the Ohio House of Representatives and Senate are H.B. 170, sponsored by Rep. Monica Robb Blasdel (R-Columbiana) and Rep. Bob Peterson (R-Sabina) and S.B. 136, sponsored by Sen. Tim Schaffer (R-Lancaster) and Sen. Brian Chavez (R-Marietta). The proposal varies in several places from a bill introduced late last year, the result of “fine tuning” by interested parties over the winter, according to Rep. Blasdel.

The proposed legislation includes clarification of the pore space property interest, a regulatory framework and fees for injection wells, consolidation or “pooling” provisions, well closure procedures, and liability provisions for carbon dioxide migration.

Clarification of “pore space” as a real property interest

Currently, Ohio does not have statutory laws that recognize pore space as a real property interest.  The proposal would change that by recognizing that the owner of  surface lands and water also owns “all pore space in all strata below the surface lands and waters.” The definition of “pore space” is “subsurface cavities and voids, whether natural or artificially created, that are suitable for use as a sequestration space for carbon dioxide.”

The proposal also addresses conveyancing of pore space, stating that a conveyance of surface ownership also conveys the pore space interest unless the pore space is expressly reserved or severed from the surface interest. This means a  landowner could sever pore space rights and convey those separate from the surface, as Ohio law currently allows with minerals.  A severed pore space interest would have priority over the surface interest.  The proposal also addresses the relationship with mineral interests, stating that severed mineral or oil and gas interests would be dominant over pore space rights. 

Regulatory framework for CCS injection wells

The proposed legislation would place state regulatory authority over CCS storage facilities in Ohio’s Division of Oil and Gas Resources Management in the Ohio Department of Natural Resources (ODNR). Note that the federal Safe Drinking Water Act also requires CCS injection wells to have a Class VI injection well permit from the U.S. EPA, although with the passage of the proposed bills, Ohio hopes to receive approval from the EPA to administer the state’s Class VI permit program.

The bills directs ODNR to adopt rules for CCS.  At a minimum, the rules must include:

(1) Requirements for the operation and monitoring of a carbon dioxide well;

(2) Safety concerning the drilling and operation of a carbon dioxide well;

(3) Spacing, setback, and other provisions to prevent storage facilities and storage operators from impacting the ability of owners of oil and gas interests to develop those interests;

(4) Protection of the public and private water supply, including the amount of water used and the source or sources of the water;

(5) Fencing and screening of surface facilities of a carbon dioxide well;

(6) Containment and disposal of drilling and other wastes related to a carbon sequestration project;

(7) Construction of access roads for purposes of the drilling and operation of a carbon dioxide well;

(8) Noise mitigation for purposes of the drilling of a carbon dioxide well and the operation of such a well, excluding safety and maintenance operations;

(9) Liability insurance to pay damages for injury to persons or property caused by the construction or operation of the storage facility;

(10) Liability insurance coverage of at least fifteen million dollars to cover bodily injury and property damage caused by the construction, drilling, or operation of wells,  including environmental coverage.

(11) A surety bond  sufficient to cover corrective actions, plugging, post-injection site care prior to receipt of a certificate of project completion, and emergency or remedial response.

The proposed law also states that ODNR may require a CCS storage well operator to deploy a seismicity monitoring system to determine seismic activity in the carbon storage area and requires a well operator to show that owners of oil and gas will not be adversely affected by the well.  Both the well operator and the well owner would pay fees to ODNR for the amount of carbon dioxide stored in the well.

Consolidation or “pooling” of pore space

If a well operator can’t obtain the consent of all pore space owners within a proposed storage area, the legislation would allow the operator to apply for “consolidation” if the operator has consent from at least 75% of the pore space owners. The remaining percentage of pore space owners could be “forced” into the project  if ODNR determines that the consolidation is “reasonably necessary to facilitate the underground storage of carbon dioxide.” Provisions would also address how to compensate the pore space owners.

Well closure

After carbon injections into a storage facility have ended and a period of 50 years passes, a storage operator may apply for a certificate of closure.  If the operator can establish full regulatory compliance and that there is no potential of migration or threat to public health or the environment, the state may issue a certificate of project completion that releases the operator from regulatory requirements and transfers the primary responsibility and liability for the stored carbon dioxide to the state. An operator could remain liable, however, under several circumstances, such as criminal acts, providing deficient or erroneous information, or violating duties.

Liability

The proposal clearly protects owners of pore space and owners of surface or subsurface property interests from liability relating to the injection of carbon dioxide into a storage facility.  It also limits any claims for damages against a storage operator to instances where the claimant can prove that the carbon dioxide injection or migration obstructed the free use of property, or caused direct physical injury to an individual, animal, or real or personal property.  The bill prohibits awarding of punitive damages if the storage operator acted in compliance with the required permit, and limits damages for personal or real property to the “diminution” or loss of value of the property.

Read an update on the progress of Ohio's CCS legislative proposals in Part 4 of our CCS series here.

Written by Tyler Zimpfer, Law Fellow with OSU Ag & Resource Law and the National Agricultural Law Center

Welcome back to our blog series on “Principles of Government,” where we explain key legal doctrines shaping the current public discourse. In this blog post, we’ll cover an action that’s been taken by every U.S. President since our country’s founding – the Executive Order (EO). Oftentimes, EOs are the primary tool Presidents use to “hit the ground running” with their agenda and campaign promises. A President is likely to issue hundreds of EOs over the course of a term in office.

What is an EO and how does it arise?

An EO is a written document signed by the President, typically directed to government officials in the executive branch. A President uses an EO to manage government operations and carry out laws consistent with the President’s policies and wishes.  The President can also modify or revoke EOs issued by previous administrations. An EO has the force and effect of law if it is founded on authority given to the President by the Constitution or by statute.

Most of us see the President sign an EO in the Oval Office or hear about it in the media, but the process to write and approve the actual text of the EO is more complex than the signature event indicates. While there are few enforceable EO guidelines, there is a process a President follows to create an EO.  Ironically, the process for Eos was established in an EO signed by President John F. Kennedy.  

The EO procedure begins with the President who, with assistance of staff, drafts an EO.  The President sends the EO to the Office of Management and Budget (OMB) with the explanation of the authority, purpose, and potential effect of the proposed actions in the EO. The OMB can refine the EO and coordinate comments from federal agencies. Once the OMB approves it, the EO goes to the Attorney General who reviews whether the order complies with the Constitution and any related laws. The Attorney General then sends an EO to the Office of the Federal Register. Like a high school English teacher, the Federal Register reviews for any grammar or typing errors. The EO then goes back to the President to be formally signed. Despite this choreography, the President can still sign an EO if anyone in the review process doesn’t approve of the EO. Just like regulations issued by an agency, EOs are numbered and published in the Federal Register, the federal government’s official publication of actions taken each day.

While EOs receive the most media attention, Presidents can also act in other ways to manage the operations of the executive branch, such as through executive memoranda and proclamations. Executive memoranda are similar to EOs but have less stringent requirements. The President is not required to explain legal authority or budgetary impacts of a memorandum. Proclamations are less formal and communicate information on holidays, special observances, trade, and policy, but do not have the force and effect of law.

Does the EO power derive from the U.S. Constitution?

The Constitution does not directly state that the President has the power to issue EOs. The President issues EOs through the inherent authority of the executive power, authority found in Article II of the Constitution. More specifically, Section I of Article II, which states “[t]he Executive Power shall be vested in a President of the United States of America,” is viewed as giving the President the authority to issue EOs and take other executive actions. The Constitution also states in Article II that the President shall “take Care that the Laws be faithfully executed,” which some claim is both authority for and a limitation on a President’s EO powers.

Is there a limit to what a President can do with an EO?

In simple terms – yes, there are limits. A President may assert that an EO holds the “force and effect of law” or the same power as a law passed by Congress. However, Presidents must issue an EO pursuant to legal authority found either in the Constitution or through a delegation of power from Congress. Because Article II’s grant of executive power is broad and many laws are ambiguously written, a President may try to stretch the scope of an EO to the outer limits of the President’s authority. When there is a question of whether a President has exceeded its executive authority in an EO, Congress may choose to support or oppose the actions through its legislative power.

Federal courts have the ability to review the legality of an EO, the same as reviewing a law passed by Congress. Courts examine both the scope of the EO  and the Constitutional provision or statute instilling authority for the order. Courts will look at the actual text of the EO, agency interpretations, and any policy and public statements made in relation to the EO. An EO may not be legally enforceable if a court determines that the President did not have the authority to issue the order.

Find the Federal Register compilation of EOs at https://www.federalregister.gov/presidential-documents/executive-orders and learn more about Executive Orders through these resources:  Executive Orders: A Beginner’s Guide, Executive Orders: An Introduction, and Executive Orders and Presidential Transitions.

Yes, you read that right—the Beneficial Ownership Information (“BOI”) reporting requirements under the Corporate Transparency Act (“CTA”) are once again in effect. On February 17, 2025, a federal judge lifted the stay he had issued on January 7 in Smith v. U.S. Department of Treasury, which had temporarily halted the Government from enforcing BOI reporting requirements nationwide. This recent ruling eliminates all nationwide barriers that had been hindering the enforcement of the CTA. As a result, millions of businesses must now comply with BOI reporting requirements or face the risk of civil and/or criminal penalties.

Updated Deadlines
On February 18, 2025, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued a notice outlining the following key updates: 

1. Most reporting companies, unless subject to a later deadline (such as disaster relief extensions), now have until March 21, 2025, to submit their initial, updated, or corrected BOI report to FinCEN.  
2. If FinCEN determines that additional time is needed for compliance, it will issue another notice before the March 21, 2025, deadline with any further changes.  
3. The named plaintiffs in National Small Business United v. Yellen are still not required to report their BOI to FinCEN at this time.

A Quick Recap: What is the Corporate Transparency Act? 
Enacted in 2021, the CTA is a federal law designed to combat financial crimes like money laundering, tax evasion, and fraud by enhancing business ownership transparency. It mandates that certain domestic and foreign entities disclose their beneficial owners—individuals who ultimately own or control the company—to FinCEN.

Who Must File Beneficial Ownership Information?
Entities designated as “reporting companies” must submit their BOI to FinCEN by March 21. This includes corporations, limited liability companies (“LLCs”), and similar entities registered with their state’s Secretary of State or an equivalent authority to conduct business. However, certain entities are exempt from BOI reporting requirements, including:  

1. Publicly traded companies which are already subject to SEC reporting requirements.  
2. Large operating companies that meet specific employee and revenue thresholds.
3. Certain regulated entities, such as banks and credit unions.

What Information Must be Filed
When completing the BOI Report, two sets of information must be submitted to FinCEN. First, the "reporting company" must provide details about itself. Then, the company must submit information about its beneficial owners.

Reporting companies will need to provide the following information: 

1. The reporting company’s legal name;
2. Tax identification number;
3. Jurisdiction of formation; and 
4. Current U.S. address. 

For their beneficial owners, reporting companies will need the following information: 

1. Full legal name;
2. Residential address;
3. A form of identification, which must be either a state issued driver’s license, a state/local/tribe-issued ID, a U.S. passport, or a foreign passport; and 
4. An image of the identification used in number 3 above. 

See our law bulletin for more details on reporting requirements. 

Where Can I File a BOI Report? 
Businesses can complete all BOI reporting by visiting the FinCEN website. There is no cost to file a BOI report. However, if a business engages a tax professional, attorney, or other third party to file a BOI report on its behalf, the business will be responsible for covering any professional fees associated with the preparation and submission of the report. 

Penalties. 
Noncompliance with the CTA and its BOI reporting requirements can result in substantial civil and/or criminal penalties, including:  

1. A daily fine of $591 (adjusted for inflation) for each day the violation persists.  
2. A criminal fine of up to $10,000 and/or up to 2 years of imprisonment.  

Looking Ahead: Ongoing Legal Challenges.
While current court rulings permit the CTA to proceed with its BOI reporting requirements, the legal battles are far from over. Several cases challenging the constitutionality of the CTA are still ongoing. Additionally, proposed legislation in both the House and Senate aims to repeal the CTA. H.R.425 and S.100, both titled the Repealing Big Brother Overreach Act, seek to fully overturn the CTA but have not yet made it through committee.

There has also been some movement on some recently proposed legislation that aims to extend the reporting deadlines under the CTA. The Protect Small Businesses from Excessive Paperwork Act of 2025 seeks to push the BOI filing deadline for most businesses to January 1, 2026. The bill has already passed the House of Representatives and has been introduced in the Senate and referred to the Committee on Banking, Housing, and Urban Affairs.

What Businesses Should Do Now.
With BOI reporting obligations reinstated, business should take immediate steps to comply: 

1. Determine if You Must Report. You can review our law bulletin or FinCEN’s website and resources to confirm whether your company qualifies as a “reporting company.” 
2. Identify Beneficial Owners. Gather the necessary information on individuals who own at least 25% of the company or exert substantial control over the company. 
3. Timely File Reports to Avoid Penalties. Submit BOI reports electronically via FinCEN’s secure filing system. 
4. Monitor Ongoing Legal Developments. Given ongoing legal challenges, businesses should stay informed about potential changes to the CTA’s enforcement. 

Final Thoughts
The Corporate Transparency Act is here to stay—at least for now. The federal government's ongoing efforts to enforce the CTA and its BOI reporting requirements highlight its commitment to corporate transparency and anti-money laundering initiatives. Companies should ensure they comply with their obligations to avoid costly penalties while staying alert to potential future legal changes.

It's time to catch up with OSU's Farm Office team for our monthly Farm Office Live webinar.  Join us this Friday, February 21 at 10:00 a.m. to hear legal and farm management updates for Ohio agriculture. Our line up this month includes these topics: