Who has the rights to the underground? In the United States, the question of property rights has never been simple, shaped by colonial legacies, racial dispossession, and the relentless push to commodify land. Following the tradition of English common law, it was understood that a property owner held everything from the heavens to the core of the Earth. Bringing complications to the surface property rights of the mid-nineteenth century, oil extraction sparked a new slew of legal disputes regarding who owned “black gold” beneath the subsurface. Could one own the minerals beneath the surface without actually owning the land above?
The lack of a clear legal framework for mineral ownership proliferated a race among landowners to obtain “rule of capture,” Bruce M. Kramer and Owen L. Anderson write, meaning that landowners sought to extract oil as fast as they could from beneath their properties, even as their activities migrated beyond surface boundary lines. The then-nascent oil and gas industry necessitated the state to intervene and create an “estate system” to allow for the ownership of minerals beneath the subsurface without having to own the surface property, explain Kramer and Anderson. Innovations in understanding geologic formations also allowed for the creation of boundary lines to indicate who owned which minerals. Now, it seems that the empty, porous rock space left behind after the extraction of minerals holds monetary value.
In the era of human-induced climate change, climate mitigation innovations have suggested that one can “put the genie back in the bottle” by storing excess carbon dioxide underground to make up for the extraction of fossil fuels. The Intergovernmental Panel on Climate Change (IPCC) predicts there is already too much carbon in the atmosphere to remain under the 1.5°C temperature target, necessitating carbon removal. Once removed, however, where does that carbon go? Into storage, it’s been proposed.
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Not All Forms of Carbon Removal Are Created Equal
Carbon dioxide can be stored in four ways: in living biomass, like trees and healthy ecosystems; in deep ocean water; as mineral carbonates; and in underground geologic formations. Scientists predict that there may not be enough arable land available or ocean capacity to support the level of carbon sequestration required to meet climate goals, requiring a turn towards geologic storage. To store CO2 in geologic formations (more specifically, in the microscopic voids in rocks or between particles of soil or sand, known collectively as “pore space”), there must be an industrial facility that can pull carbon dioxide at a point source, or, even better, from ambient air, and then inject it at high speeds deep underground. Usually, a network of pipelines is required to transport liquified CO2 from its point of capture to the storage site. Climate law scholars Tracy Hester and Michael B. Gerrard explain that this technology doesn’t yet exist at the scale required to mitigate climate change, but leading climate physicist Myles Allen heralds it as a means to “stop fossil fuels from causing global warming, before the world stops using fossil fuels.”
Social science scholars are concerned about this emerging “carbon removal” industry, arguing that it has the potential to delay the phase-out of fossil fuels and served as a lifeline to legacy polluters. While these system-wide criticisms must be further investigated, there are also environmental justice concerns that come from a site-by-site analysis of existing carbon utilization and storage projects, especially around pore space ownership. For example, activists in Southern Louisiana are concerned about the safety of CO2 injections, wondering how they might impact a geography with groundwater contamination issues and abandoned oil and gas wells. Leaky CO2 wells have been reported at the first commercial carbon capture plant in the United States, in Decatur, Illinois. There is also a significant lesson to be learned from the carbon dioxide pipeline explosion that occurred in Satartia, Mississippi, in 2020, which deprived a community of oxygen for several minutes. Because of the excess CO2 from the burst pipeline, vehicle engines failed, meaning that ambulances were unable to respond to residents who couldn’t breathe. Though no one died, residents report lasting health effects aligned with carbon dioxide asphyxiation.
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Activists are also interested in questions of who owns the pore space, as they don’t want CO2 injections to occur underneath their homes, schools, and hospitals. Wading into murky legal waters, Jean Feriancek points out that pore space ownership differs from state to state. It’s not yet settled whether states will adopt the “mineral estate model” following the legacy of oil and gas, which would favor developers looking to store CO2 underground. In April 2025, the Louisiana House of Representatives Natural Resources Committee considered legislation that granted greater community protections for carbon removal, including HB75, which requires equitable payment for all pore space owners. Passage of this bill would have ensured that all pore space owners were compensated at the same amount, as they’re taking on the same amount of risk by having CO2 injected beneath their surface property. HB75 failed to pass the House of Representatives, allowing the default of oil and gas unitization to remain the rule of the law and undermining the rights and liabilities held by smaller surface and pore space owners.
The race for pore space is reminiscent of the “rule of capture,” and ownership rules are developing similarly to oil and gas leasing. Should climate mitigation “solutions” look like the same paradigms that caused the climate crisis? With questionable risks and limited regulatory protections, CO2 storage in pore space seems to hold critical legal, social, and technical challenges before it can be deployed at a scale required to remain under 1.5°C. Perhaps a focus on land-based sequestration and the phasing out of carbon-polluting technologies might not only be more effective but would also grant co-benefits in the communities in which they’re situated.
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