Carbon Sequestration – Balancing Property Rights and the Public Good

Carbon sequestration is the capture of carbon dioxide (CO2). This is the process of carbon capture and storage, where carbon dioxide is removed from flue gases, such as on power stations, before being stored in underground reservoirs. There are also natural sequestration processes such as the ocean. Carbon sequestration describes long-term storage of carbon dioxide or other forms of carbon to either mitigate or defer global warming. It has been proposed as a way to slow the atmospheric and marine accumulation of greenhouse gases, which are released by burning fossil fuels. The lack of a settled legal framework that balances private property rights while maximizing the public good ultimately hinders the large-scale commercial deployment of geologic carbon sequestration, according to research by A. Bryan Endres, a professor of agricultural law at the University of Illinois.

In order to justify the extensive up-front capital investment by firms, issues with the property rights of the subsurface pore space that would permanently house the captured carbon dioxide must be resolved first, says A. Bryan Endres, a professor of agricultural law at Illinois.

“You have a new technology that requires a lot of upfront capital investment, but you don’t have a legal framework for how you’re going to be able to implement this technology with regard to property rights,” said Endres, who also is the director of the university’s European Union Center. “What’s unique about property rights is they’re usually pretty well settled, and yet here we are dealing with a situation where ownership isn’t quite so clear. That’s a key question, because a firm isn’t going to invest money in a carbon sequestration plant before they are confident about who owns the area underneath.”

According to the study, published in the University of Illinois Law Review, ownership of the pore space at the depths necessary for permanent geologic carbon sequestration is still an open question in the vast majority of states.

“Right now, only Wyoming, Montana and North Dakota have assigned the property rights of the pore space to the surface property owner,” Endres said. “While that might make good political sense, I don’t think that makes good policy sense because it creates a patchwork of small land-holdings. With carbon sequestration, the geology is going to determine the limits, not some grid-based property system. This is why we need to have legislative involvement to clarify the situation.”

Like air transport, carbon sequestration should be thought of as a public good — one that has the added potential to reduce carbon dioxide emissions and curb global climate change.

“It makes more sense to treat it as you would airspace for an airplane, in that it belongs to the state and they can decide who’s going to access it,” Endres said. “It would be a much more efficient system if the state had ownership of it.”

Endres notes that there’s also the potential for states to generate a significant amount of revenue from carbon sequestration, either through an auction or a royalty system.

While this isn’t necessarily the silver bullet to reverse carbon dioxide emissions, Endres says it’s one of many ready-made and already available tools that could slow the growth rate of global climate change.

“This is a technology that will allow us to utilize natural resources like coal while also shrinking its carbon footprint,” he said. “So it’s important to get this framework in place so the industry can really take off, because now you just have a lot of speculation, experimental labs and pilot projects. This is something that needs to get developed sooner rather than later.”

The question of legal rights will be a sharply debated issue for decades still. Both sides will use the facade of property right for their own positions.

Article by Andy Soos, appearing courtesy Environmental News Network.

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