Supreme Court of Ohio held that a legal injury exists where subsurface migration of injectate interferes with a “ reasonable and foreseeable use of the subsurface .” 10 Thus , although subsurface migration of injected substances is a technical trespass , showing a reasonable and foreseeable use of the subsurface could be a significant hurdle for a plaintiff not engaged in an existing subsurface use . This standard would likely be met , however , where the plaintiff ’ s existing subsurface uses are substantially harmed , such as where an injection operator ’ s activities damage or destroy another ’ s producing well , whether oil , gas , produced water , or otherwise . In fact , a recent case out of the 8th Court of Appeals in El Paso held that Texas law recognizes a trespass claim based on the unauthorized interference with a lessee ’ s right to develop minerals ( i . e ., an existing subsurface use ) because of the migration of large amounts of produced water . 11
Texas oil and gas practitioners might also recognize a similar version of this standard from Lyle v . Midway Solar , LLC . 12 Although Lyle involved the application of the accommodation doctrine to a dispute between a solar developer ’ s actual use of the surface and the mineral owners ’ claimed interference with their speculative , future development of the mineral estate , the 8th Court of Appeals ’ decision to affirm the dismissal of the mineral owners ’ trespass claim on ripeness grounds hits many of the same notes as in Chance . Specifically , the court held that unless and until the mineral owners attempted to develop the mineral estate , usage of the surface estate was uninhibited by the accommodation doctrine . 13 In other words , any trespass claim was premature until the mineral owners actually sought to develop their minerals . If this were not the case , a mineral owner who undertakes no effort to develop the mineral estate could claim damages from any surface use that might hinder mineral exploration at any point in the future .
Assuming the standard established by Chance is adopted by Texas courts , excluding instances where an existing subsurface use is impaired , claims for trespass associated with subsurface CO2 migration may not be viable because plaintiffs will be unable to show a “ reasonable and foreseeable use of the subsurface ” and interference with that use by the injected substances . Despite this current legal impediment , damages and injunctive relief associated with subsurface CO2 migration remain a tangible risk because , as the market for pore space matures , it may become easier for landowners to show the unauthorized CO2 is interfering with a reasonable and foreseeable use of their subsurface ( e . g ., CCS operations ).
Minimizing the Risk
To conduct a sequestration project , an operator must have the real property rights to possess the premises where CO2 will be injected . Determining the extent of surface and associated subsurface rights to acquire is a commercial consideration . Texas law provides some guidance , but certain risks remain that require consideration . To obtain a permit for the injection and geologic storage of CO2 from the Railroad Commission of Texas , the applicant must “ provide [] a signed statement that the applicant has a good faith claim to the necessary and sufficient property rights for construction and operation of the geologic storage facility for at least the first five years after initiation of injection in accordance with [ 16 TAC ] § 5.203 ( d )( 1 )( A ). . . .” 14 Thus , an injection operator should obtain , at least initially , the subsurface rights to the property covering the total area the injection operator forecasts will encompass the migration of the injectate plume for the first five years of injection . 15
The area anticipated to cover the first five years of injectate migration , however , is the minimum quantum of subsurface rights required . A review of relevant Texas caselaw indicates that satisfying the minimal permit requirement may expose the injection operator to potential trespass and nuisance claims from neighboring surface and mineral estate owners outside the five-year migration radius because migration projections are not always accurate , and migration can exceed even the best modeling projections . 16
Although determining the amount of additional property rights outside the five-year migration area is an important aspect of a CCS project ’ s risk profile , it is ultimately a commercial decision based on a combination of factors , such as project timing , acquisition costs , and migration modeling , among others . Considering the significant financial commitment required to construct and operate a sequestration facility and the uncertainties with plume modeling , best practices may dictate that subsurface storage rights be acquired for an area well beyond the minimal permit requirements .
Conclusion
Although the standard established by other jurisdictions such as in Chance v . BP Chemicals , Inc . represents favorable caselaw for the CCS industry and is believed by many academics to be the best standard to facilitate the effective and efficient use of pore space in the public interest , 17 Texas law on subsurface trespass when there is no competing subsurface use remains unsettled and current regulations surrounding implementation and operation of CCS projects provide minimal guidance on land rights necessary for underground CO2 storage . Until either the Supreme Court of Texas or the Texas Legislature take the lead in clarifying the law in this area , CCS operators are left to make a multitude of commercial decisions . In the meantime , evaluating the potential risk of and ultimately adjudicating any claims for trespass and other torts associated with subsurface migration of CO2 will be a case-by-case analysis that will likely involve the application of a variety of common law doctrines , including the accommodation doctrine , correlative-rights doctrine , and the prior appropriation doctrine , among others . 18 TBJ
Notes
1 . See Joseph A . Schremmer , Getting Past Possession : Subsurface Property Disputes as
Nuisances , 95 Wash . L . Rev . 315 , 322 ( 2020 ). 2 . Id . 3 . See Owen L . Anderson , Carbon Sequestration : A Fresh Look at an Essential Tool in the
War on Climate Change , OGEL 3 , 27 ( 2023 ).
4 . See Lyle v . Midway Solar , LLC , 618 S . W . 3d 857 , 868 ( Tex . App .— El Paso 2020 , pet . denied ) ( recognizing that under Texas law , a mineral estate owner “ has the right to use the surface to extract minerals , as well as those incidental rights reasonably
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