Carbon Capture and Storage: Industry Connections and Community Impacts
Our analysis demonstrates that carbon capture and storage (CCS) is a problematic and ineffective clean energy solution. Despite its wide-ranging risks and diminishing returns for communities across the U.S., industries that stand to capitalize on the proliferation of CCS are aggressively pursuing its development.
This article discusses specific examples of issues related to CCS, including partnerships between major industrial players, such as large-scale commercial agriculture, fertilizer producers, and the oil and gas industry, and the resulting threat to farming communities in the Midwest. Additionally, we provide examples of the disproportionate public health impacts on environmental justice communities where components of CCS could be sited, as well as an analysis of some of the legislative, regulatory, and legal mechanisms that impact landowners as the rights to use underground formations known as “pore space” are seized to store sequestered carbon.
The hype surrounding carbon capture and storage (CCS) is a phenomenon we’ve witnessed before. For example, prior to the current CCS frenzy, there was George W. Bush’s “Hydrogen Economy” initiative and, before that, there was the hoopla around corn ethanol as a clean energy alternative. However, neither initiative has aged well since their inception; the myth of hydrogen as a clean energy source has been debunked, and too many peer-reviewed studies to list demonstrate that ethanol actually requires more energy to produce than it generates when considering the entire process from cradle to grave. The drawbacks of both hydrogen and ethanol make them impractical alternatives to fossil fuels, but powerful industries are continuing their pursuit of disproven “green energy” solutions nevertheless.
Knowing this, we are now on the verge of another monolithic industry boondoggle: a mighty marriage between the ethanol industry that’s proliferating across the Great Plains region, private equity giants like BlackRock, and the oil and gas industry, three major players that are teaming up in an attempt to take the massive amounts of CO2 produced during the ethanol process and pipe it into underground formations – or pore space – in places like Central Illinois. As the plans to capture and store carbon dioxide are developing, ethanol refiners across the Midwest are lining up to ship their emissions along a network of pipeline proposals, all in the name of strengthening their “Green Neighbor” bona fides while simultaneously perpetuating unproven clean energy solutions.
Carbon Capture and Storage Pipeline Proposals in Wyoming and the US Great Plains
This interactive map looks at CCS Pipeline proposals, associated ethanol refineries, and agricultural productivity across the Great Plains.
View the map “Details” tab below in the top right corner to learn more and access the data, or click on the map to explore the dynamic version of this data. Data sources are also listed at the end of this article.
In order to turn layers on and off in the map, use the Layers dropdown menu. This tool is only available in Full Screen view.
Items will activate in this map dependent on the level of zoom in or out.
Ethanol and CCS in the Great Plains
Green Plains Inc., a leading North American ethanol fuel producer based in Omaha, Nebraska, recently reported to the SEC that they have already committed eight of their ethanol refineries producing “658 million gallons of annual capacity, or nearly 70% of [their] platform” to the Summit Carbon Solutions (SCS) project. According to Green Plains, “Compliance with future laws or regulations to decrease carbon dioxide could be costly and may prevent us from operating our plants as profitably, which may have an adverse impact on our operations, cash flows and financial position.”
Similarly, Valero Energy Corporation out of Texas revealed in its 2021 10-K form that they would be participating “in a large-scale carbon capture and sequestration pipeline system in the Mid-Continent region of the U.S. that is expected to capture, transport, and store carbon dioxide that results from the ethanol manufacturing process at our eight ethanol plants located in Iowa, Minnesota, Nebraska, and South Dakota.”
The combined resource demand of these two ethanol giants is staggering: To put it into perspective, their combined production capacity requires 6.9 billion gallons of water per year, and 7,500 square miles of corn acreage, an area of land equivalent to the size of Massachusetts.
The SCS project is being led by Iowa Republican patron Bruce Rastetter – and advised by former Iowa Governor and Trump ambassador to China Terry Branstad (a man labeled as “complicit his entire life in the destruction of family farm-based agriculture ” in one letter to the editor published by the Des Moines Register). Many who are opposed to CO2 pipelines like the Summit, and the similarly-marketed Greenway proposal that would pipe 15 million metric tons of ethanol refinery C02 to the Mt. Simon Sandstone beneath much of central Illinois, believe that such projects would only accelerate the “Get Big or Get Out” mentality foisted on Midwest farming communities, pushing them closer to the brink.
The inevitable results of such incentives would be: 1) an even greater reliance on producing more and more – likely GMO and proprietary – corn putting even more stress on soils that appear to be at a breaking point with less and less ability to capture water because less organic matter is being returned to the soils a situation that will only be amplified as the ethanol industry relies on even the remnant corn stover left in the field to produce ethanol and “renewable” natural gas; 2) a further drawing down of precious reserves of high-quality water contained in the likes of Iowa’s Jordan aquifer; and 3) greater demands for chemical inputs that themselves require tremendous amounts of natural gas (See Ethanol Refinery capacity and resource utilization Data Download at the Bottom). To this last point, according to Mosaic Company’s 10-K filed with the Securities and Exchange Commission (SEC), they need 5 units of natural gas for every unit of phosphorus mined at their Belle Plaine mine in Saskatchewan, Canada and with respect to nitrogen fertilizers we see from CF Industries SEC filings that they require 365 MMBtu to produce 3.7 million tons of ammonia fertilizer each year providing the best example of the connective tissue that binds Big Ag and Big Oil & Gas.
If we assume, based on Green Plains 2021 10-K form (Item 7a and Table 1), that ethanol refiners produce roughly 36 gallons of ethanol per Mcf of natural gas, we can estimate the Valero and Green Plains capacity alluded to above requires 58.6 million Mcf. As far as point water demand is concerned the University of Minnesota found that only 1 of the state’s 20 ethanol refineries used surface water with the rest relying on aquifers prompting serious questions about water-use efficiency and what some have called “the food, energy, and environment trilemma” in an already water intense commodity production and processing ecosystem. The link between chemical inputs for large-scale agriculture (i.e., fertilizers, pesticides, herbicides, etc.), CCS, and Oil & Gas is perfectly encapsulated in the following three examples: 1) the Biden administration’s recent $1.04 billion conditional loan guarantee to Monolith Nebraska to make clean hydrogen for fertilizers as well as black carbon for tires and other rubber products; 2) the admission of Greenway COO David Giles at the Appalachian Hydrogen & Carbon Capture Conference in April that he expects his primary customers to be the ammonia and fertilizer industry of the region; and 3) Wolf Carbon Solutions out of Canada’s 150-mile pipeline who’s impetus was CO2 emissions from a Nutrien ammonia fertilizer plant and the North West Redwater Sturgeon refinery 25 miles northeast of Edmonton.
|Material||Estimated Volume for 2022-23||Units|
|Gallons of Ethanol Per Mcf Natural Gas||35.84|
|Corn Area||2.32||Million Acres|
|Nitrogen + Phosphorus Fertilizer||187-599||Thousand Tons|
Table 1. Green Plains Inc.’s Expected ethanol production, commodity, and natural gas demands for the year 2022 (From page 51 of their 2021 10-K filings here).
If family farmers along the routes of either of these proposals think they will have a seat at the table, they need look no further than Iowa Governor Kim Reynolds’ Economic Recovery Advisory Board which recommended that the governor, by way of an executive order, establish a Carbon Sequestration Task Force. The governor signed the executive order on June 22 of last year, but as University of Iowa professor Colin Gordon pointed out, the ERAB is populated by “nine CEOs or business owners, one corporate counsel, one Chamber of Commerce vice-president, one corporate board member, and one factory manager.”
So far, Rastetter and Reynold’s Summit proposal has prompted nearly 900 public comments to the Iowa Utilities Board which has been charged with the permitting of pipelines and Reuters found that nearly 99% were in opposition to the project. Similarly, at an Iowa Public Utilities Board public meeting in January on the Greenway project the company and the state left the audience wanting with respect to questions on whether a full carbon budget had been done, whether the pipeline could burst, and whether the state would invoke imminent domain to facilitate the pipeline’s construction. Food & Water Watch organizer and Iowa resident Emma Schmit summed the skepticism up best: “We’re really just seeing big businesses working together to keep these industries that are on their deathbeds alive…People on the ground see it for what it is: a lie.”
In contrast to the lack of pipeline resistance we’ve seen in Appalachia and Northern Ohio, Jessica Wiskus, one of the primary players in the resistance to CCS CO2 pipelines, made it clear that Summit resistance is coming from farmers of all ages because of their concerns about what would happen to their beloved soils, a land ethic that is not just about this year’s crop, and maybe most importantly due to the fact that, unlike other largely agrarian places where pipelines have been sited, the family farm is alive and well in Eastern Iowa:
“Here it is viable for the next generation to pick up farming because we have the best soils in the country. Sons who are looking to learn and take over the farm and go to Iowa State to get an agricultural degree.”
I can’t help but wonder what residents of the Standing Rock Sioux tribe think when they see white farmers in Iowa and both Dakotas, rightly, get their hackles up about private property rights and eminent domain, but yet when the Standing Rock Tribe was fighting the Dakota Access Pipeline (DAPL) in the face of massive private security and county law enforcement, many who talk the loudest about private property rights were nowhere to be found. In an op-ed written by Wiskus in support of SF 2160 introduced by state Senator Jeff Taylor (See Table 2 below for a summary of relevant legal fights and legislation) this past February, she summed up why eminent domain for CO2 pipelines was necessary and inevitable even if the industry wasn’t willing to say it out loud:
“The pipelines aren’t necessary for ethanol—they’re only “necessary” in the eyes of Bruce Rastetter (CEO of Summit Agricultural Group) and Joe Gorder (CEO of Valero) because these men decided to invest in carbon capture instead of reducing ethanol’s CO2 emissions at the source (like ADM and POET). That’s a business decision, not a public good, and these businessmen know that their success depends upon the use of eminent domain to take land away from Iowa’s rural citizens.”
Unfortunately, SF 2160 was killed by Republican State Senator Jason Schultz “without a single word of explanation,” even though some of the country’s largest ethanol producers like ADM and Poet supported the bill, with ADM currently working with the Illinois State Geological Survey to inject its own CO2 into a massive sandstone formation at a rate of roughly 405,000 metric tons of CO2 per year without the need for massive pipeline networks.
However, even ADM appears like it will need eminent domain as it ponders a 260-350-mile pipeline to move 12 million metrics tons of CO2 from its Cedar Rapids and Clinton, Iowa refineries that collectively produce nearly 800 million gallons of ethanol, to its Decatur, Illinois, operations where their currently sequestering CO2. As Ms. Wiskus told me by phone, representatives in Des Moines “passed bills that required a minimum threshold for the triggering of eminent domain. It was not just 20% of landowners that triggered eminent domain… but right now it is up to three people on the Iowa Public Utilities Board to decide what will or will not trigger eminent domain versus above-ground utilities where the landowners get together to decide if this is in the public good. That process is in law already. The fact that someone would say it is legal does not mean there is not a moral requirement. There is a loophole for just the pipelines in addition to the moral outrage. It is for a private corporation, not the public good!”
To Ms. Wiskus’ point McPherson County, South Dakota Commissioner Anthony Kunz in defending his county’s moratorium on “hazardous liquid transmission pipelines” said the quiet part out loud that Summit Carbon Solutions wasn’t willing to say in open setting with respect to the use of eminent domain:
“If you read between the lines, I think that’s probably an option for them. They say they don’t want to, but they also don’t tell you that they won’t.”
InForum columnist and “Child of the Prairie” North Dakota resident Tony Bender said of eminent domain:
“During a recent meeting in Wishek, North Dakota, Summit representatives treated landowners like rubes. Gosh, when it came to the issue of eminent domain, they didn’t want to talk about that possibility. They don’t want to talk about landowner liability, either, because the landowners’ insurers don’t want to touch this with a 10-foot pole.”
The historical reliance of Big Oil & Gas and now Big Ag and Fertilizer by way of their relationship with the former on 1) eminent domain, 2) inflated benefit estimates, 3) pitting neighbor against neighbor, 4) dismissing the original rights provided to indigenous communities in the Fort Laramie Treaty, and 5) an inability to bring themselves to even mention potential environmental and health costs, flies directly in the face of the Biden administration’s Council on Environmental Quality (CEQ) “guidance to Federal agencies to help ensure that the advancement of Carbon Capture, Utilization, and Sequestration (CCUS) technologies is done in a responsible manner that incorporates the input of communities and reflects the best available science.” Whether there are any teeth to this guidance, or it is merely window dressing is yet to be determined, but as the current president once said at a Vice Presidential debate in 2008, the “Past is Prologue”.
Many of the comments in opposition to the Midwest CCS CO2 pipeline proposals would ring familiar to anyone that has followed the permitting of interstate natural gas and oil transmission pipelines like the NEXUS here in Ohio, or the numerous incidents reported to the Pipeline and Hazardous Materials Safety Administration (PHMSA). Nowhere are the similarities between frontline sentiment and the ways in which elected officials and industry package these projects more obvious than in what Ms. Wiskus, now running in Iowa State Senate’s District 42 election in November, told me when I asked her about the similarities between fracking and CCS:
“This was promoted as something that would revitalize rural communities just like fracking! When I got materials in the mail from the company with very little forewarning or information on safety there was something about the materials that led me to think there must be something more to the story. This skepticism was due to my experience in Pennsylvania. All these CCS proposals are for EOR and that is beyond a doubt! They say they are going to separate the topsoil but what we so with DAPL made us question that statement even though there is a law here in Iowa that demands this be done. They placed the topsoil within the temporary expanded ROW, and they used that to drive their equipment along during construction. You can’t fix it cause it’s like Humpty Dumpty. It’s also about the small family farmer and we know all the farmers in my area…[and] what everyone’s family has sacrificed for generations…When you farm there is something you are part of that is greater than you at work every single year and you can’t just hand that over to a private corporation because they don’t understand it. There’s nothing more offensive than these private corporations saying, “I need your land for my profit” and political differences are eliminated, and this provides the strength to say “I don’t care what you are offering me!’”
South Dakota organic farmer Charlie Johnson concurred with Ms. Wiskus when he told South Dakota News Watch that he opposes the Summit for the same reasons he opposed the Dakota Access Pipeline (DAPL) that went through his land, stating, “What we’re doing is creating stress and anxiety for thousands of landowners, we’re tearing up the land, we’re investing billions of dollars that could be invested better…Let’s get back to simpler approaches; let’s get back to capturing carbon by using nature itself.”
It is important to note that, unlike oil and gas, the carbon dioxide that is transported in pipelines is moved in a “supercritical” state somewhere between a liquid and a gas and if it isn’t kept under constant and consistent pressure, it can “unzip” pipelines which may have been what happened in Satartia, Mississippi.
It was just two years ago that a CO2 pipeline operated by Denbury Inc., then known as Denbury Resources, in Satartia ruptured leaving 250 largely African-American evacuees and dozens sick, with PHMSA only just now having released its findings on the incident. This pipeline pulls CO2 from an extinct volcano beneath Jackson, 40 miles to the southeast of Sataria, for what CO2 has heretofore usually been used for a process called enhanced oil recovery (EOR) which relies on brine or CO2 injected at high pressures and volumes to repressurize spent oil fields from Northern Michigan to California, Mississippi, and all points in between. Satartia is not unique in the sense that much of the existing and proposed infrastructure that will be critical for the viability of CCS will be sited in low-income neighborhoods and communities of color like Southwest Detroit, St. James Parish, and Pittsburgh, with one of the best and most recent examples being the “River Bend CCS” project announced by Talos Energy, Storegga, EnLink Midstream to be sited across “Iberville, St James, Assumption and Lafourche parishes…[with] access to an industrial area emitting around 80 million tonnes per year of CO2.” With respect to the role of EOR in CCS it is clear that EOR allows for the extraction of those hard to reach oil pockets, however, research showed “that between 3.7 and 4.7 metric tons of CO2 are emitted for every metric ton of CO2 injected”.
Law of the Land: The Clash Between Surface Owners, Subsurface Rights, and Imminent Domain
It shouldn’t come as a shock that the same Denbury Resources that operates CO2 EOR pipelines in Mississippi, and was one of the industry leaders in efforts to take the teeth out of EPA emissions reporting requirements, has also taken landowners like the Mossers of North Dakota to court claiming that they had “the right to dispose of saltwater into the plaintiffs’ pore space without providing them compensation.” This case prompted the crafting of the infamous SB 2344 or ‘pore space’ bill in the North Dakota Senate which would add a new definition to North Dakota’s Century Code (38-11.1-03) for the term “land” meaning “the solid material of earth, regardless of ingredients, but excludes pore space.” This bill was passed by the legislature in 2019 with overwhelming support from the oil and gas industry but equally vehement opposition from farmers and ranchers like those represented by the Northwest Landowners Association and the Salted Lands Council.
Not coincidentally, the North Dakota Supreme Court just decided in March that they wanted to hear the case about pore space with many wondering what a victory for industry in North Dakota would mean for CO2, EOR, and similar legal battles in other energy rich states experiencing similar fracking booms in recent years. The importance of ‘pore space’ ownership to the recent CCS conversation was illustrated perfectly by the fact that that very phrase was mentioned seven times in an article about the impact of the Greenway project on rural Illinois in Midwest Energy News this past March. In Colorado, according to the law firm Davis Graham & Stubbs, as of this past February, “ownership of the pore space remains unclear. That uncertainty presents an obstacle to further investment and development in these projects… However, uncertainty remains in this developing field, so ownership of the pore space should not be presumed to be vested in the surface owner, especially when there has been a severance of the surface estate and mineral estate.” However, Colorado has been considering taking back primacy over the Class VI injection well program from US EPA, with Class VI wells being the primary way in which CO2 is injected if not for Enhanced Oil Recovery (EOR).
The same lack of clarity exists in Texas, the biggest producer of greenhouse gasses nationwide and the state that DOE estimates has the most to gain if CCS becomes scalable, with an estimated storage capacity of 661 million to 2.4 billion tons of carbon dioxide. However, Texas’ pore space situation is equally fuzzy now with cases over the years not providing any clarity as to whether The Lone Star State is an “American” rule or “English” rule state with respect to pore space. The primary difference is that the former couples pore space and surface estates providing the surface owner with compensation “for pore space storage rights” while the latter severs them and doesn’t provide for such compensation.
When I reached out to LSU Nesser Family Chair in Energy Law Professor Keith Hall for comment on ‘pore space’ and any changes in its definition in his neck of the woods. He told me that, from his vantage point, there is very “little case law…but most legal scholars believe that the ‘pore space’ rights belong to the landowner…but there is something called the ad coelum doctrine…It could be the that the landowner owns the pore space or it could be that no one owns the pore space. An oil and gas company if they own the mineral rights, they would own the rights to extract the oil and gas that’s there…the empty pore space belongs to the landowner if there is a separation between surface and mineral rights…One problem is that if it changes who owns it then you’ve got a takings issue…in most cases the industry doesn’t like the uncertainty and are pushing legislation that will provide clarification. Early in the 1900s when you started having litigation about airplanes flying over land you had courts determining that it would not be feasible to have airlines pay everyone along the route. At certain depths, the courts might determine that…no one owns the pore space and that the public good outweighs private property rights.”
The ad coelum doctrine pertains to “the common law rule that a landlord owns everything below and above the land, up to the sky and below the earth to its core. This doctrine applies to all minerals in the land as well. This doctrine includes ownership of hard minerals such as coal, but not volatile minerals such as oil and gas.” At this point it seems like there is a tension between industry need for certainty and landowners’ unwillingness to be run over. Thus, we see pressure being put on elected officials in statehouses all over the country to lower the cost of doing business by way of even lower regulatory hurdles, legislation that would test the limits of eminent domain and the definition of ‘land’, and an ever-faster race to the bottom pitting neighboring states against each other with ever sweeter tax breaks and related incentives.
It is clear big industries, such oil and gas and commercial agriculture, are at a crossroads in their business models. Their Achilles heels are becoming increasingly clear, leaving them and the global investor class with only one route: a coordinated strategy to greenwash away their sins against the planet and the people. This runs counter to the mission of non-profits like FracTracker, so we will continue to monitor and map these developments whether they are happening out on Walter Prescott Webb’s “Great Plains,” or Elizabeth Catte’s “Appalachia,” and everywhere in between.
Relevant eminent domain, CCS, and pore space legislation at the state and federal level
|SB 2344||North Dakota||Passed by Senate and House; Signed by Governor 4/19/2022||A new definition to North Dakota’s Century Code (38-11.1-03) for the term “land” meaning “the solid material of earth, regardless of ingredients, but excludes pore space.”||https://ndlegis.gov/assembly/66-2019/bill-actions/ba2344.html|
|HB 1249/SB 265||Indiana||House Committee on Natural Resources heard testimony 1/18/2022||“Would prevent liability claims related to Wabash Valley’s [CCS from power generation or chemical manufacturing] project unless plaintiffs can prove “actual interference with the reasonable use of the person’s property; or direct and tangible physical damage to the person’s property”||http://iga.in.gov/legislative/2022/bills/house/1249|
|HB 1209||Indiana||Approved by state legislature 3/2/2022||“Creates a process for companies to get landowner approval and compensate landowners for storing carbon dioxide in the pore space below-ground. The bill — pushed by BP — mandates compensating landowners for pore space but also allows them to operate below one’s land if at least 70% of affected landowners approve it.”||http://iga.in.gov/legislative/2022/bills/house/1209#document-4ce28005|
|SB 1101||California||Introduced in Senate 2/16/2022||This bill would specify that free space includes pore space that can be possessed and used for the storage of gaseous or liquid substances.||https://openstates.org/ca/bills/20212022/SB1101/|
|LB 650||Nebraska||Signed into law on 5/24/2021||Ownership of “reservoir state” is with the surface owner, unless that reservoir has been severed from the surface rights; 60% of target volume must be in consent before nonconsenting owners are equitably compensated; storage operator has title to injected CO2 and associated liability||https://nebraskalegislature.gov/FloorDocs/107/PDF/Final/LB650.pdf;|
|Statute 34-1-152||Wyoming||ownership of all pore space in all strata below the surface lands and waters of this state is declared to be vested in the several owners of the surface above the strata.||https://law.justia.com/codes/wyoming/2011/title34/chapter1/section34-1-152/|
|MCA 82-11-180||Montana||2009||Lays out the rights of the property owner during the issuance of a permit for a carbon dioxide injection well||https://leg.mt.gov/bills/mca/title_0820/chapter_0110/part_0010/section_0800/0820-0110-0010-0800.html|
|New Mexico||“Enchant Energy is asking New Mexico lawmakers to introduce legislation that would clarify who owns the rights to the small cavities in geological formations that carbon dioxide can be injected into.”||https://www.dcquake.com/news/energy/enchant-energy-pushes-for-legislation-clarifying-pore-space-ownership/|
|HF 2565/SF 2160||Iowa||3/24/2022||“would enact a moratorium on Iowa Utilities Board (IUB) hearings for carbon capture & storage (CCS) pipelines until February 1, 2023. This legislation would temporarily stop carbon sequestration companies from using eminent domain proceedings to condemn land along the pipeline routes for the length of the moratorium.”||https://www.legis.iowa.gov/legislation/BillBook?ga=89&ba=HF2565;|
|HF 2325||Iowa||Introduced 2/10/2022||“would require pipeline companies to get approval from at least 90 percent of landowners in the pipeline’s path before beginning construction.”||https://www.legis.iowa.gov/legislation/BillBook?ba=HF2325&ga=89;|
|Clean Coal FutureGen for Illinois Act||Illinois||2011||Aimed at boosting the now-defunct FutureGen project in Morgan County designed to demonstrate capture and sequestration of waste carbon dioxide from Ameren’s 200 MW Unit 4 a coal-fired electrical generating station in Meredosia which at its peak was emitting 900,000 tons of CO2 annually||https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3387&ChapterID=5;|
|Minnesota PUC||Minnesota||5/19/2022||Voted unanimously to determine that the Commission has authority to permit CO2 pipelines allowing for more regulations, initiate rulemaking to clarify language, and consider de minimis exemptions||https://twitter.com/MNSnarkDept/status/1527336841484984331|
|County Boards of Commissioners||South Dakota||1/11/2022||“to place a moratorium on hazardous liquid transmission pipelines as defined in Title 49 CFR Section 192.3 and Title 49 CFR 195.2 and Title 49 CFR 193.2007; this moratorium shall remain in place until a revised McPherson County zoning ordinance can be approved and take effect.”||https://app.box.com/s/mjk3s5me5s1bsqjgrk5y5s9igumy5d0j;|
|Brown and Spink Counties||South Dakota||Spring 2022||Passed ordinances in addition to moratorium on hazardous liquid transmission pipelines that would establish 1,500-foot setbacks and 6-foot depths for such pipelines||Chase Jensen, Dakota Rural Action, personal communication|
|HB21-1303||Colorado||5/5/2021||“sets the maximum acceptable global warming potential for materials utilized by the Colorado Department of Transportation and certain public works – including buildings, roads, highways, and bridge construction projects.”||https://leg.colorado.gov/bills/HB21-1303|
|Natural Gas Act||Federal Government||1938||“Whoever owns the land owns all the way up to heaven and all the way down to hell!”||https://www.ferc.gov/sites/default/files/2021-04/natural_gas_act.pdf|
|Mosser V. Denbury||North Dakota Supreme Court||2017||Denbury Resources took Randall Mosser, Douglas Mosser, Marilyn Koon, and Jayne Harkin to court claiming that they had “the right to dispose of saltwater into the plaintiffs’ pore space without providing them compensation.” This case prompted the crafting SB 2344 above and is currently being heard by the North Dakota Supreme Court||https://law.justia.com/cases/north-dakota/supreme-court/2017/20160379.html;|
|Mapco, Inc V. Carter||Texas Court of Appeals||1991||English Rule was invoked with mineral owner receiving payment for storage rights||https://www.courtlistener.com/opinion/2438320/mapco-inc-v-carter/;|
|Emeny V. United States||Texas, United States Court of Claims||1969||“the surface owner should be compensated for pore space storage rights, following the American Rule. Specifically, the court ruled that rights conveyed in an oil and gas lease did not include the rights to “the geological structures beneath the surface, including any such structure that might be suitable for the underground storage of foreign or extraneous gas produced elsewhere.”||https://www.courtlistener.com/opinion/285562/caroline-bush-emeny-v-the-united-states/;|
|FPL Farming, Ltd. V. Texas Natural Resources Conservation Commission||Texas Court of Appeals||2009||“court assumed, without deciding, that the surface estate did own the underground pore space and thus had the right to bring the legal action. The court did not address how this assumption conflicts with Mapco.”||https://caselaw.findlaw.com/tx-court-of-appeals/1505133.html;|
Table 2. Relevant eminent domain, CCS, and pore space legislation at the state and federal level.
The Take Away
Our analysis demonstrates that carbon capture and storage (CCS) is a problematic and ineffective clean energy solution. However, industries that stand to capitalize on the proliferation of CCS are aggressively pursuing its development despite its wide-ranging risks and diminishing returns for communities across the U.S.
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