Climate change, carbon sequestration, and property rights

This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO₂) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to widely deploy this technology, future CCS operators must be able to access millions of acres of deep subsurface "pore space" roughly a kilometer below the earth's surface to sequester the CO₂ for hundreds to thousands of years. This Article explores questions relating to ownership of subsurface pore space, physical takings, regulatory takings, and just compensation that will necessarily accompany the implementation of CCS in the United States. In order to accommodate the full range of property rights and takings issues that will arise with CCS, this Article proposes a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO ₂ sequestration.