Landowners to own underground pore space

Cheyenne – A bill being sponsored by the Wyoming Legislature’s Joint Judiciary Committee specifies that the ownership of underground pores lies with the surface estate owner. Not yet assigned a number, the legislation is titled “Ownership of subsurface pore space.”
    A second piece of legislation, called “Carbon capture and sequestration” spells out oversight responsibilities. Authority is assigned to the Wyoming Department of Environmental Quality (DEQ) with the exception of CO2 used in advanced oil recovery where power will continue to lie with the Wyoming Oil and Gas Conservation Commission. Both pieces of legislation, neither of which has been assigned a bill number, passed out of the Joint Judiciary Committee at its mid-January meeting.
    “There is going to be major transfer of wealth in this country as a result of carbon capture and sequestration,” said Governor Freudenthal in a prepared statement leading up to the recent Judiciary Committee meeting, “and I would rather that wealth go to our citizens than to the federal government.”
    “The bill adopts what’s being called the American Rule,” says Senator Tony Ross of Cheyenne, chairman of the Senate Judiciary Committee. “We’ve defined some more ownership rights for landowners.”
    “It fundamentally says the surface owner owns everything from the surface to the center of the Earth,” explains Wyoming Farm Bureau Executive Vice President Ken Hamilton of the American Rule. “If this bill goes as it is, it’s severable just like any other right. If I sold a ranch the day after the bill becomes law I could expressly sever off the pore space.”
    “As a landowner, I think all things being equal I’d rather own the pore space because it gives me additional control over what may happen under my property,” says Senator Drew Perkins. A Casper-based attorney and member of the Judiciary Committee, Perkins was the lone “no” vote on the bills citing concerns over landowner liability and the effects CO2 sequestration may have on the environment and aquifers. Sequestered in liquid form, CO2 can take several years to stabilize. In the event problems occur Perkins says it could be two to three generations down the road when the company that sequestered the carbon is difficult, if not impossible, to locate.
    Pores being considered for sequestration include those left following the extraction of minerals and others that are naturally occurring. The Rock Springs Uplift is frequently used as an example of where underground sequestration activities could take place.
    “A section would be small,” says Hamilton noting the potential for multiple landowners to be involved in a single project. Storage can occur more than a mile below the Earth’s surface. In the meantime he says, “We have to figure out how to economically capture carbon and get it from point A to point B.” Protecting the mineral estate, which could lie under a void used for storage, is another consideration.
    “Eminent domain is still on the table,” says Ross also listing liability, bonding requirements and ensuring safety for the public as issues that have yet to be decided and may be addressed as an interim topic beginning later this year. “So much of it is still in its infancy.”
    Eminent domain authority did exist in earlier drafts of the legislation, but Hamilton says it was removed with support from ag representatives attending the meetings. Multiple landowners above the voids are likely to necessitate the need for eminent domain authority to be revisited but there was no need for it at this point, he says.
    In terms of the volumes that would need to be captured, Perkins says current releases of CO2 into the atmosphere in Wyoming are estimated at 40 million tons per year. “Over the next 10-15 years that is estimated to increase to 60 million tons per year,” he says noting federal laws requiring that approximately half of those emissions be sequestered. “That’s about 30 million tons of CO2 per year we’re going to have to sequester,” says Perkins. “Nationally, it’s even more dramatic where you’re talking seven billion tons of CO2 a year. If we meet that 50 percent goal that Congress has set you’re talking 3.5 billion tons a year nationally.” Perkins says a ton is the equivalent of 17,300 Mcf noting the potential need to sequester 60 billion Mcf of CO2. The only volume comparison he says he can think of is the extraction of natural gas taking place.
    “I’m still trying to get somebody to explain why the costly sludge that’s likely to be formed and possibly leach other minerals, many of which could be detrimental, is a better trade-off than CO2 in the atmosphere,” says Perkins. Voids under the Earth’s surface, he explains, aren’t empty but full of salt water or other materials that could be displaced when CO2 enters the void. Also skeptical of the global warming theory, Perkins says a very small percentage of CO2 in the atmosphere is anthropogenic.
     “We can stick our heads in the sand and pretend it’s not coming or we can get ahead of the game,” says Ross. “The purpose of this legislation is not to get into the issue of whether or not global warming is happening, but it is a recognition of a trend that is occurring nationally.”
    “We’ll be working on carbon sequestration legislation for the next 15 years,” says Perkins. “It’s vital we get the foundational issues of ownership and liability right the first time. Once we start down this road it’s going to be hard to come back.”
    “We want to say Wyoming has ensured ownership rights and set up a regulatory system that should this market take place we’re ready to do the right thing,” says Ross.
    The 2008 Budget Session of the Wyoming Legislature convenes in Cheyenne on Feb. 11. Copies of the carbon legislation can be located on the legislature’s website at http://legisweb.state.wy.us. Jennifer Womack is editor of the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.