necessary for the extraction ”).
5 . Dunn – McCampbell Royalty Interest , Inc . v . Nat ’ l Park Serv ., 630 F . 3d 431 , 441 ( 5th Cir . 2011 ) ( apply Texas law ); see also Humble Oil & Ref . Co . v . West , 508 S . W . 2d 812 , 815 ( Tex . 1974 ) ( characterizing the surface owner ’ s interest as ownership of the “ reservoir storage space ”).
6 . See Lightning Oil Co . v . Anadarko E & P Onshore , LLC , 520 S . W . 3d 39 , 47 ( Tex . 2017 ); see also Regency Field Servs ., LLC v . Swift Energy Operating , LLC , 622 S . W . 3d 807 , 820 ( Tex . 2021 ) (“[ T ] he surface owner , and not the mineral lessee , owns the possessory rights to the space under the property ’ s surface ….”); see also West , 508 S . W . 2d at 815 (“[ T ] he property of [ the surface estate owners ] include [ s ] the geological structures beneath the surface .”).
7 . See Elizabeth L . McGinley et al ., Critical Issues For Carbon Capture Projects : Tax , Environmental , Land Rights , and Commercial Issues , 68 FNREL-INST 7 , 7-16 ( 2022 ). 8 . Env ’ t Processing Sys ., LLC . v . FPL Farming Ltd ., 457 S . W . 3d 414 , 422 ( Tex . 2015 ). 9 . Id . at 425 ( declining to decide “ whether deep subsurface wastewater migration is actionable as a common law trespass in Texas ”); see also FPL Farming Ltd . v . Env ’ t Processing Sys ., LLC ., 351 S . W . 3d 306 , 314 – 15 ( Tex . 2011 ) ( declining to decide “ whether subsurface wastewater migration can constitute a trespass , or whether it did so in this case ”); see also Coastal Oil & Gas Corp . v . Garza Energy Trust , 268 S . W . 3d 1 , 12-13 ( Tex . 2008 ) ( same ); see also Regency Field Servs ., LLC , 622 S . W . 3d at 320 ( Tex . 2021 ) ( declining to decide whether subsurface migration of H 2 S can constitute a trespass to possessory rights because plaintiff claimed trespass to its nonpossessory rights as a mineral lessee ).
10 . Chance v . BP Chems ., 670 N . E . 2d 985 , 992 ( Ohio 1996 ) ( finding no legal injury because mere speculation as to loss of property value is insufficient ); see also Baatz v . Columbia Gas Transmission , LLC , 295 F . Supp . 776 , 785 ( N . D . Ohio 2018 ) ( holding that “ the Ohio Supreme Court has made it clear that subsurface trespasses are not actionable unless the invaded landowner can prove actual damage to the property or actual interference with the actual or foreseeable use of the land .”)
11 . See Iskandia Energy Operating , Inc . v . SWEPI , LP , No . 08-22-00103-CV , 2023 WL
7168241 at * 14 ( Tex . App .— El Paso October 31 , 2023 , no pet . h .). 12 . 618 S . W . 3d 857 . 13 . Id . at 875 . 14 . 16 Tex . Admin . Code § 5.206 ( b )( 10 ) ( emphasis added ). 15 . 16 Tex . Admin . Code § 5.203 ( d )( 1 )( A )( i )( I ) ( describing the variables used to calculate 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 ).
16 . See Regency Field Servs ., 622 S . W . 3d 807 at 812 ( although initial models predicted the injectate plume would take 40 years to migrate 2,220 feet , injectate was discovered 3,300 feet from injection well five years after injection began , and a revised modeling study showed the injectate may have crossed under the surface boundary of the neighboring tract as early as two years after injection began ). 17 . See Anderson , supra note 3 , at 29-31 .
18 . Id .
WILLIAM A . MOSS focuses his practice on complex commercial litigation matters with a special emphasis on energy disputes . His wealth of experience in oil and gas litigation enables him to provide effective business advice to both resolve and prevent disputes as well as advise clients navigating the energy transition . This includes everything from trade secrets and title disputes to joint operating agreements and ownership of subsurface pore space for carbon sequestration and enhanced recovery .
JAMES “ JJ ” McANELLY III is a nationally recognized and well-regarded upstream , midstream , and deal lawyer . As co-chair of the firm ’ s oil and gas practice and with more than 30 years of industry experience , he represents a broad , diverse client-base ranging from majors , independents , oilfields services , private-equity , and their portfolio companies in a broad spectrum of transactions including the purchase , sale , restructuring and / or financing of exploration and producing properties , processing plants , production and storage facilities , and pipeline systems . With the emergence of the energy transition and given his broad oil and gas experience , McAnelly is advising on numerous carbon capture projects , including real property rights and commercial issues involving enhanced oil recovery and CO2 sequestration .
208 Texas Bar Journal • March 2024 texasbar . com