2021 ] CARBON CAPTURE , UTILIZATION , AND SEQUESTRATION 63
area before the unit is approved by the state ’ s applicable regulatory agency . 90 The statutes also typically require the operator to show good faith efforts were made to reach a voluntary agreement with the applicable interest owner before compulsory unitization will be ordered . Operators in states lacking a compulsory unitization provision , such as Texas , must obtain the voluntary consent of working and royalty interest owners owning an interest within the unit area to effectuate a unitization . 91
Once unitization has been approved by the state regulatory agency , some jurisdictions will take the public benefit of increased recovery into consideration in the face of common law trespass claims against the members of the unit . Texas courts have consistently declined to provide injunctive relief , in this context , to trespass claims for injected substances that have traversed unit boundaries into nonunitized neighboring tracts and formations . 92 These decisions have effectively replaced the common law trespass standards with a more lenient standard for unit operations in units approved by the Texas Railroad Commission . 93 Further , “ the courts in Texas have been willing to limit relief to damages and have required a showing that the conduct is not only intentional but also unreasonable before such a claim can become actionable .” 94 In Oklahoma , several courts have held operators liable for nuisance claims , despite a state approved unit agreement , after injected substances migrated beyond unit boundaries . 95 In these instances , the landowner was ultimately awarded damages after proving interference resulting from the encroachment of injected substances into nonunitized tracts or formations . 96
A similar regulatory framework has emerged for CO 2 sequestration operations . In the last fifteen years , a number of states have passed new legislation to
90 . See Kate Goodrich , Texas Takes a Different View Towards Compulsory Unitization Legislation ,
TEX . J . OIL GAS & ENERGY L . ( Mar . 24 , 2017 ), http :// tjogel . org / texas-takes-a-different-view-towardscompulsory-unitization-legislation /, for a discussion of state unitization statutes , observing the following :
To date , 29 oil-producing states have statutes that govern unitization , and of those , 25 require authorization by both owners of the ‘ working interest group ’ ( those responsible for costs ) and the ‘ royalty group ’ ( owners entitled to royalties ). The percentage of parties ’ approval required to unitize varies between states , but usually it is the same percentage within a particular state as to both the working interest group and the royalty group . It ranges from as low as 51 percent ( e . g . Illinois and Kentucky ) to as high as 80 percent ( e . g . Colorado ). Sixteen states require 75 percent approval for at least one group .
91 . Durrant , supra note 72 , at 4 . For a complete summary of unitization laws by state , see Marie C . Baca , State Laws can Compel Landowners to Accept Gas and Oil Drilling , PROPUBLICA ( May 19 , 2011 ), https :// projects . propublica . org / tables / forced-pooling . html .
92 . Lee , supra note 85 , at 11 ( citing R . R . Comm ’ n of Tex . v . Manziel , 361 S . W . 2d 560 ( Tex .
1962 )). 93 . Id . 94 . Id . at 12 . 95 . Durrant , supra note 72 , at 8 ( citing Boyce v . Dundee Healdton Sand Unit , 560 P . 2d 234 , 238 ( Okla . Civ . App . 1975 )); see also Fairfax Oil Co . v . Bolinger , 97 P . 2d 574 , 576 ( Okla . 1939 ); Greyhound Leasing & Fin . Corp . v . Joiner City Unit , 444 F . 2d 439 , 441 – 44 ( 10th Cir . 1971 ); Gulf Oil Corp . v . Hughes , 371 P . 2d 81 , 83 ( Okla . 1962 ).
96 . See generally , Bolinger , 97 P . 2d at 57 ; Greyhound Leasing , 444 F . 2d 439 ; Hughes , 371 P . 2d 81 .