58 TEXAS JOURNAL OF OIL , GAS , AND ENERGY LAW [ Vol . 16:1
technologies allow coal , oil , gas , midstream , chemical , and power producers to create new value centers and , in some instances , revenue sources from their existing operations through capture and disposal technologies . They will also simultaneously improve the efficiency of their existing operations from an economic and environmental perspective to create a marketplace where these sectors will no longer be required to fight one another for market share , but will work with each other as partners and customers of one another . 71 The remaining portions of this paper will review the real property rights and related legal considerations for EOR and sequestration operations as well as some of the principle considerations for commercial arrangements in CCUS projects .
III . REAL PROPERTY RIGHTS AND RELATED LEGAL CONSIDERATIONS FOR
EOR AND SEQUESTRATION OPERATIONS
In order to conduct an EOR or sequestration project , the operator must have the real property rights to possess the premises where CO 2 will be injected . Both types of projects entail the injection of CO 2 into subsurface geological structures of the property where operations are conducted . Consequently , both require the operator to have the right to access and possess the subsurface geological structures . For this reason , many of the real property rights and landrelated legal considerations for either type of project will be the same . This portion of the paper will explore the relevant legal considerations regarding ownership of subsurface geological pore space and the notable differences between these types of projects .
A . Ownership of Subsurface Geological Pore Space in the United States
Within the United States , the right to inject and store gaseous substances in an underground reservoir generally belongs to the surface owner of the premises on which the reservoir is situated . 72 Those familiar with mineral ownership rights may struggle to reconcile the fact that the right to inject gaseous substances thousands of feet beneath the surface belongs to the surface owner with
71 . See26 U . S . C . § 45Q ( 2018 ). 72 . See generally Marie Durrant , Preparing for the Flood : CO2 Enhanced Oil Recovery , 59 ROCKY
MTN . MIN . L . INST . 11-1 ( 2013 ); Owen L . Anderson , Geologic CO 2 Sequestration : Who Owns the Pore Space ?, 9 WYO . L . REV . 97 ( 2009 ). In some instances , the mineral substances themselves will be used , commingled , or disrupted in the course of injection operations . For instance , many underground storage facilities are located within depleted salt-dome reservoirs . When injection operations target a strata that is either composed of a mineral substance ( like a salt dome ) or may contain marketable mineral substances , the mineral interest owners should consent to operations . If the property is subject to a valid mineral lease , appropriate consent and access rights should be obtained from both the mineral lessor and mineral lessee . See generally , Mapco , Inc . v . Carter , 808 S . W . 2d 262 ( Tex . App .— Beaumont 1991 ), rev ’ d on other grounds , 817 S . W . 2d 686 ( Tex . 1991 ). Additionally , when minerals are actively being extracted from the reservoir in connection with EOR operations , the lessee of the mineral lease will have royalty obligations on the native mineral substances removed from the reservoir . The lease ’ s royalty provision will determine the calculation and scope of the royalty obligations owed to the mineral lessor by the mineral lessee for produced mineral substances .