Pore Space Property

Through modern technology we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up with advancing technology in this area. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture an oil well on her property if the fractures extend beneath B’s land? May C store anthropogenic carbon dioxide for climate change mitigation in a common reservoir that extends beneath the land of D, E, F, and G if they do not consent? If so, what, if any, compensation does C owe to the others? These and similar scenarios pose urgent questions for a wide range of landowners, industries, environmental interests, courts, and policymakers across the nation. This Article searches for answers to these pressing questions in the doctrinal histories of similar common pool natural resources. The Article reviews the development of common law rights in water and oil and gas to synthesize lessons for shaping the content and limits of rights in pore space. Then, applying these lessons to the current state of pore space rights, the Article explains that rights in pore space are established by a default rule of prior use and are absolute, subject to little, if any, limitation. As demand for the resource continues to grow, however, owners, and, ultimately, courts will likely search for ways to limit the absolute extent of pore space rights to avoid a tragedy of the pore space commons. In searching for doctrinal mechanisms to make pore space rights limited, or correlative, the Article predicts that courts will be tempted to choose between establishing limits by strict, formalist rules of proportionality (which favor certainty), on the one hand, and instrumentalist, utilitarian standards of reasonable use (which favor development of the resource), on the other. This Article identifies an underexplored doctrine from oil and gas law that would define the limits of pore space rights without resort to purely instrumentalist or formalist doctrines. The “fair-opportunity doctrine” articulated here would permit an owner to use any quantity of pore space anywhere in a common reservoir, so long as it does not interfere with the lawful existing operations of other owners or deprive other owners of a fair opportunity to either participate in the proposed operations or conduct like operations from their respective land

Getting Past Possession: Subsurface Property Disputes as Nuisances

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature. Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable, and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance. This Article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this Article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracking, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and more efficiently allocate costs of subsurface activities. The Article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS

Getting Past Possession: Subsurface Property Disputes as Nuisances

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature. Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance. This article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracing, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and efficiently allocate costs of subsurface activities. The article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS

Everything Under the Sun: A Guide to Siting Solar in the Lone Star State

Encouraging energy production using renewable resources is a widely recognized public policy that is promoted by both the federal and state governments in the U.S., and with recent technological advances, renewable-electricity generation is rapidly becoming economically viable. The Energy Information Administration (EIA) forecasts that electricity production from all renewable sources will increase 72% between 2013 and 2040, with the renewable share of total U.S. electricity generation growing from 13% to 18%.1 The future of solar power is especially bright with a projected growth rate of 6.8% per year between 2013 and 2040. If this projection holds true, solar power will far outpace the growth of other renewables. Combined with the Investment Tax Credit (ITC) introduced in 2006, rapid improvements in photovoltaic (PV) solar panel efficiency and dramatic reductions in PV costs are driving a veritable solar boom in the U.S. In fact, the Solar Energy Industries Association (SEIA) reports a 73% decrease in the cost of installing solar since the implementation of the ITC, and anticipates an additional 20,000 Megawatts (MW) of solar generation capacity will come online in the next two years, doubling current U.S. solar capacity. Likewise, the EIA projects that solar power will account for nearly half of the total 109,000MW of renewable-generation-capacity that is expected to be added to the U.S. electricity grid by 2040.The Kay Bailey Hutchison Center for Energy, Law, and Busines