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DIGGING DEEP: PROPERTY RIGHTS IN SUBTERRANEAN SPACE AND THE CHALLENGE OF CARBON CAPTURE AND STORAGE

Published online by Cambridge University Press:  31 October 2013

Jill Morgan
Jill Morgan*
Affiliation:
Reader in Property Law, Swansea University, [email protected].
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Abstract

A burgeoning international interest in Carbon Capture and Storage (CCS) as a means of mitigating the effects of climate change has raised a number of novel legal issues, one of which concerns ownership of the underground sites in which captured carbon dioxide can be stored. This paper considers the extent of a surface landowner's rights above and below land and explores the treatment of underground space within the context of CCS in relation to differing jurisdictions. Particular attention is paid to legal principles applied in the United Kingdom and the United States, and consideration is also given to relevant legislation in Australia and Canada.

Keywords

airspacecarbon capture and storageminingreal propertysubsurface land
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 813 - 837
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 D Evans, M Stephenson and R Shaw, ‘The present and future use of “land” below ground’ [2009] Land Use Policy 26S S302–S316. For the first deep excavation in the UK since the 1980s, see <http://www.bbc.co.uk/news/uk-england-tyne-13914718> reporting on the drilling of a borehole in Newcastle to capture geothermal energy. Another use of subterranean space—hydraulic fracturing (fracking)—has already taken place in the Bowland Basin in Lancashire at depths greater than 6,000 feet.

2 The Committee on Climate Change states that CCS technology is also likely to be feasible in energy-intensive industries including iron and steel, industrial CHP (combined heat and power), refining, cement and chemicals: The Fourth Carbon Budget: Reducing Emissions through the 2020s (Committee on Climate Change London 2010) 228.

3 See Greenpeace, False Hope: Why Carbon Capture and Storage Won't Save the Climate (Greenpeace International, Amsterdam 2008)Google Scholar <http://www.greenpeace.org/usa/Global/usa/report/2008/5/false-hope-why-carbon-capture.pdf>.

4 <http://www.parliament.uk/documents/post/postpn343.pdf>.

5 Internationally, the first steps to mitigate the impact of climate change were taken in 1992 with the United Nations Framework Convention on Climate Change (UNFCCC). The Kyoto Protocol—an addition to the UNFCCC—expressly identified ‘research on, and promotion, development and increased use … of carbon dioxide sequestration technologies’ for promoting sustainable development, (Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 Dec 1997, UN Doc FCCC/CP/197/L.7/Add. 1, art 2, section 1(a)(iv) <http://unfccc.int/resource/docs/convkp/kpeng.pdf> while at their Hokkaido Summit in 2008, G8 leaders agreed to establish an international initiative with the support of the International Energy Agency ‘to develop CCS technology roadmaps and co-operate through existing and new partnerships’ <http://www.mofa.go.jp/policy/economy/summit/2008/doc/doc080714__en.html>. At European level, the European Climate Change Programme was launched in 2000 to identify and develop an EU strategy to achieve a reduction in greenhouse gas emissions to 8 per cent below 1990 levels by 2008–12, as required by the Kyoto Protocol (The European Union Commission, Towards a European Climate Change Programme <http://eur-lex.europa.eu/LexUriServ/site/en/com/2000/com2000_0088en01.pdf>). The ‘climate and energy package’ (which was agreed by the European Parliament and Council in December 2008 and became law in 2009) includes the Directive on the Geological Storage of Carbon Dioxide Directive 2009/31/EC <http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:140:0114:0135:EN:PDF>. The Storage of Carbon Dioxide (Licensing) Regulations 2010 partially fulfil the UK's obligation to transpose the Directive into UK domestic law, stipulating, inter alia, that geological storage of CO2 will be possible only with an appropriate permit.

6 ‘The 1990 baseline’ means the aggregate amount of (a) net UK emissions of carbon dioxide for that year, and (b) net UK emissions of each of the other targeted greenhouse gases for the year that is the base year for that gas: section 1(2) of the Climate Change Act 2008.

7 International Energy Agency, Energy Technology Perspectives, Executive Summary (IEA Paris 2010)Google Scholar.

8 Carbon capture and storage is said to be something of a misnomer given that, ‘storage assumes that materials will be retrieved, whilst disposal aims to store and isolate materials for longer periods, perhaps for many tens of thousands of years in the case of carbon dioxide and nuclear waste’: Evans, Stephenson and Shaw (n 1) S303.

9 While the directive assumes that CCS may be deployed both under terra firma and under the seabed, for the present the UK is focusing on the latter hoping to exploit its geophysical circumstances in light of decades of gas and oil exploration and extraction.

10 Directive 2009/31/EC, art 39 (see n 5).

11 The issues raised by the storage of captured CO2 have much in common with those associated with the underground storage of natural gas, particularly in relation to the nature of, and title to, the storage space. See e.g. Central Kentucky Natural Gas v Smallwood 252 S.W.2d 866 (Ky Ct. App 1952) in which the main question was whether rent payable for a natural gas storage space should be paid to the surface owner or the mineral owner. However, unlike captured CO2, natural gas is generally stored for only short periods of time and, because it is a valuable commodity, the ownership of the gas itself is significant (where, for example, it has migrated into neighbouring land: see e.g. Hardwicke, RE, ‘The Rule of Capture and Its Implications As Applied to Oil and Gas’ (1935) 13 TexLRev 391Google Scholar).

12 [2011] 1 AC 380.

13 UK Carbon Storage and Capture Community <http://www.co2storage.org.uk/ccs-importance.html>.

14 <http://www.guardian.co.uk/environment/datablog/2009/sep/02/carbon-emissions-per-person-capita>.

15 According to the Intergovernmental Panel on Climate Change (IPCC) ‘warming of the climate system is unequivocal, as is now evident from observations in global average air and ocean temperatures, widespread melting of snow and ice and rising global average sea level’: IPCC, Fourth Assessment Report: Climate Change 2007: Synthesis Report (IPCC Geneva 2007)Google Scholar, 1.1. It states that, ‘most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic GHG concentrations’ (ibid, 2.4).

16 The Royal Society, Ocean Acidification Due to Increasing Atmospheric Carbon Dioxide (2005)Google Scholar <http://royalsociety.org/uploadedFiles/Royal_Society_Content/policy/publications/2005/9634.pdf>.

17 Preamble to Directive 2009/31/EC, art 39 (n 5).

18 ‘Fluids in a supercritical state … typically exhibit gaslike viscosity, reducing resistance to flow relative to a liquid, and liquidlike density, reducing the volume required to store a given mass of fluid’ (Popova, O et al. et al, ‘Comparative Analysis of Carbon Dioxide Storage Resource Assessment Methodologies’ (2012) 19(3) Environmental Geosciences 105CrossRefGoogle Scholar, 109.

19 International Energy Agency, Energy Technology Perspectives (OECD/IEA 2008) 268Google Scholar.

20 Holloway, S, ‘Carbon Capture and Geological Storage’ (2007) 365(1853) PhilTransRSocA 1095Google ScholarPubMed, 1095.

21 In EOR, CO2 is injected into a depleting oilfield to reduce the viscosity of the oil. As it sweeps through the reservoir, it releases oil additional to that recoverable by ordinary production methods. The first commercial CO2 EOR project was initiated in 1972 in Texas: Russial, TJ, CCS: Legal and Regulatory Framework – 10 Year Progress Report (United States Carbon Sequestration Council 2010) 4Google Scholar. During the early 1980s, EOR projects using CO2 were undertaken in the UK at the Egmanton and Bothamsall oilfields in the East Midlands but the results were disappointing and the research was ended because of ‘prohibitive costs’: Evans et al (n 1) S310.

22 Simulations have shown that the areal extent of a plume of CO2 injected from a 1 GW coal-fired power plant over 30 years into a 100 m-thick zone will be approximately 100 km2 and may grow after injection ceases: Pruess, K et al. et al, ‘Numerical Modeling of Aquifer Disposal of CO2’ (Society of Petroleum Engineers, 2001CrossRefGoogle Scholar) SPE Paper no 66537 quoted in Rutqvist, J and Tsang, C-F, ‘A Study of Caprock Hydromechanical Changes Associated with CO2 Injection into a Brine Formation’ (2002) 42 Environmental Geology 296–305CrossRefGoogle Scholar.

23 The largest onshore oilfield in the UK is the Wytch Farm field, which underlies Poole Harbour, on the south coast of England: Holloway, S, Vincent, CJ and Kirk, KL, Industrial Carbon Dioxide Emissions and Carbon Dioxide Storage Potential in the UK. British Geological Survey Commercial Report, CR/06/185N (2005) ivGoogle Scholar, 13 <http://nora.nerc.ac.uk/4837/1/CR06185N.pdf>.

24 ibid.

25 Section 1 of the Energy Act 2008. Under the UN Convention of the Law of the Sea (UNCLOS) 1982, territorial waters may extend 12 nautical miles from its baselines. The Crown Estate owns the majority of the seabed around the UK out to the 12-nautical-mile limit. The 2008 Act asserts the right of the Crown under art 56(1) of UNCLOS to a Gas Importation and Storage Zone (GISZ) for the storage of natural gas and CO2. The area of the GISZ is designated by the Gas Importation and Storage Zone (Designation of Area) Order 2009 (SI 2009/223).

26 These will involve landlocked countries and those with only limited access to continental shelf marine environments.

27 Grave, BN, ‘Carbon Capture and Storage in South Dakota: The Need for a Clear Designation of Pore Space Ownership’ (2010) 55 SDLRev 72Google Scholar, 88.

28 (1931) 47 LQR 14; DE Smith (1982) 6 Trent Law Journal 33, 38. For a history and analysis of the maxim's application in Scots Law see Lyall, F, ‘The Maxim cuius est solum in Scots Law’ [1978] JR 147Google Scholar.

29 (1586) I Cro Eliz 118.

30 [1978] QB 479, 487.

31 [1974] AC 328, 351–2.

32 [2010] Ch 100, para 59.

33 [2011] 1 AC 380, para 26.

34 Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479, 485 (Griffiths J).

35 (1815) 171 E.R. 70; 4 Camp 219.

36 (1884) 13 QBD 904.

37 [1926] WN 336.

38 See too e.g. Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; Laiqat v Majid [2005] EWHC 1305; Didow v Alberta Power Ltd (1988) 45 CCLT 231.

39 Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd [1992] Ch 225; Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 41; Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1; Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464; Lewvest Ltd v Scotia Towers Ltd (1982) 126 DLR (3d) 239.

40 Pickering v Rudd (1815) 4 Camp 219, 220–1; 171 ER 70, 72. In Kenyon v Hart (1865) 6 B & S249; 122 ER 1188 Blackburn J stated (at 1190) that he understood and agreed with Lord Ellenborough's doubt concerning whether the passage of an aeronaut in a balloon constituted trespass, though he could not understand the legal reason for it. The answer may be found in the Tasmanian case of Davies v Bennison (1927) 4 TLR 8, where Nicholls CJ pointed out that ‘if the hovering aeroplane is perfected, the logical outcome of Lord Ellenborough's dictum would be that a man might hover as long as he pleased at a yard, or foot, or an inch, above his neighbour's soil, and not be a trespasser, yet if he should touch it for one second he would be’.

41 [1978] QB 479.

42 ibid, 488.

43 [1978] QB 479, 488.

44 (1989) 24 NSWLR 490, 495–6.

45 (1946) 328 US 256.

46 ibid, 261.

47 ibid, 266.

48 ibid, 272.

49 ibid, 264.

50 ibid, 264.

51 Gray, K and Gray, SF, Elements of Land Law (OUP 2009)Google Scholar 1.2.32.

52 Rules of the Air Regulations 2007, Sch 1, section 3(5).

53 Gray and Gray (n 51) 1.2.38.

54 In the modern, environmental era, more attuned to the risks posed by the externalization of harms, threats to the ‘unowned’ environment are now of mainstream concern. See the classic exposition by Hardin, G, ‘Tragedy of the Commons’ (1968) 162 Science 1243–8CrossRefGoogle ScholarPubMed.

55 [1954] Ex CR 69.

56 [1978] 86 DLR (3d) 631 (2 WWR 694).

57 Cassese, A, International Law (OUP 2005)Google Scholar 5.1.

58 Gray, K, ‘Property in Thin Air’ (1991) 50 CLJ 252CrossRefGoogle Scholar, n 103.

59 Section 76(1). Similar legislation exists in many other jurisdictions, e.g. section 30 of the Victoria Wrongs Act 1958.

60 Howell, J, ‘Subterranean Land Law: Rights below the Surface of Land’ (2002) 53 NILQ 268CrossRefGoogle Scholar, 270.

61 Morgan, SM, ‘The Law Relating to the Use of Remote Sensing Techniques in Mineral Exploration’ (1982) 56 ALJ 30Google Scholar.

62 See text accompanying n 56.

63 Thrasher v City of Atlanta 173 SE 817, 826 (1934).

64 CA 119/01, Akunas v State of Israel, 57(1) PD 817 (per Aharon Barak) quoted in Sandberg, H, ‘Three-dimensional Partition and Registration of Subsurface Space’ (2003) 37 Israel Law Review 119CrossRefGoogle Scholar.

65 cf the common law under which ‘the trespasser having no right at all to kill the game … can give himself no property in it by his wrongful act; and that as game killed or reduced into possession is the subject of property, and must belong to somebody, there can be no other owner of it … but the person on whose ground it is taken or killed’: Blades v Higgs (1865) 11 ER 1474; 11 HLC 621.

66 Secher, U, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction”— Part 1’ (2006) 13 APLJ 107Google Scholar.

67 Bradbrook, AJ, ‘The Relevance of the Cujus Est Solum Doctrine to the Surface Landowner's Claims to Natural Resources Located above and beneath the Land’ (1989) 11 Adelaide Law Review 462Google Scholar.

68 ibid, 473–4. As illustrated by Bocardo (discussed below) access to subterranean space does not necessarily require access to the surface of the land immediately above, but failure to obtain the requisite consent from the relevant landowner will constitute a trespass.

69 Section 7(3) of the Coal Industry Act 1994.

70 Sections 1 and 2 of the Petroleum Act 1998.

71 [1914] 1 Ch 438.

72 ibid, 450. However, Bradbrook argues that the Crown's entitlement to certain minerals does not necessarily mean that all other mines and minerals which lie beneath the soil belong absolutely to the surface landowner (n 67) 463–4.

73 Delaware Mansions v Westminster City Council [2001] UKHL 55.

74 Willcox v Kettell [1937] 1 All ER 222.

75 Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52.

76 Bulli Coal Mining Co v Osborne [1899] AC 351.

77 Morgan (n 61) 31.

78 232 Ky 791; 24 SW2d 619 (1929) 620.

79 cf later proceedings Edwards v Lee's Administrator 265 Ky 418; 96 SW 2d 1028 (1936) in which Judge Thomas expressed the view (432) that preservation of the rights of all parties concerned (including the public who should not be deprived of ‘the educational and other benefits to be derived from visiting the nature-made wonder’) would best be served by treating the cave ‘as a unit of property throughout its entire exhibitable length, including the augmentations of prongs or branches … owned jointly by all of the surface owners above it, in proportion that the length of their surface ownership bears to the entire length of such exhibitable portion’.

80 See also Boehringer v Montalto 254 NY Sup 276 (1931) in which a sewer 150 feet below the surface was held not to be an invasion of the landowner's rights because the depth at which it was placed was beyond the point at which he could conceivably make use of the property.

81 232 Ky 791; 24 SW2d 619 (1929) 622.

82 ibid.

83 This is at odds with Bradbrook's argument that the same practical effect is achieved whether cuius est solum or res nullius is applied (see text accompanying n 68).

84 Sprankling, JG, ‘Owning the Center of the Earth’ (2008) 55 UCLALRev 979Google Scholar, 986.

85 ibid, 983.

86 Howell (n 60) 270.

87 [2011] 1 AC 380.

88 ibid, para 8.

89 ibid, para 19.

90 Klass, AB and Wilson, EJ, ‘Climate Change, Carbon Sequestration, and Property Rights’ (2010) UillLRev 363, 389Google Scholar.

91 Zadick, JR, ‘The Public Pore Space: Enabling Carbon Capture and Sequestration by Reconceptualising Subsurface Property Rights’ 36 Wm&MaryEnvtlL&PolicyRev 257Google Scholar, 269 (2011).

92 ibid, 272.

93 DeCesar, TR, ‘An Evaluation of Eminent Domain and a National Carbon Capture and Geologic Sequestration Program: Redefining the Space Below’ (2010) 45 WakeForestLRev 261Google Scholar, 283.

94 ibid, 283.

95 Reisinger, W et al. , ‘Reconciling King Coal and Climate Change: A Regulatory Framework for Carbon Capture and Storage’ 11 (2009) Vermont Journal of Environmental Law 1CrossRefGoogle Scholar, 16.

96 ibid.

97 268 SW 3d 1 (Tex 2008).

98 ibid, 11.

99 Until recently such legislation would have been unnecessary in the same way that there was no need for legislation such as the Air Commerce Act 1926 at a time when air travel was not possible or was in its infancy.

100 Reisinger et al (n 95) 16. On the other hand, the fact that subterranean space is finite could also be used to support a public domain argument: if a resource is limited, then it is preferable that it be used in the public interest.

101 ibid.

102 Logan, TJ, ‘Carbon Down Under—Lessons from Australia: Two Recommendations for Clarifying Subsurface Property Rights to Facilitate Onshore Geologic Carbon Sequestration in the United States’ 11 SanDiegoIntlLJ 561Google Scholar, 587 (2010).

103 Note McGrew, SD, ‘Selected Issues in Federal Condemnations for Underground Natural Gas Storage Rights: Valuation Methods, Inverse Condemnation, and Trespass’ (2000) 51 CaseWResLRev 131Google Scholar, 178.

104 Klass and Wilson (n 90) 388–9.

105 Logan (n 102) 587.

106 [2011] 1 AC 380.

107 The 1934 Act was repealed and replaced by the Petroleum Act 1998, section 3 of which deals with the granting of licences.

108 These provisions now appear in the Petroleum Act 1998. They empower the court to grant ancillary rights where, first, it is satisfied that the grant is expedient in the national interest and, second, it is shown that it is not reasonably practicable to obtain them by private arrangement because, inter alia, the persons with power to grant them are ‘numerous or have conflicting interests’ or ‘unreasonably refuse to grant the right or demand terms which, having regard to the circumstances, are unreasonable’. They would appear to render unnecessary the reforms suggested in Griggs, L, ‘Cujus Est Solum – An Unfortunate Scrap of Latin, Doctrine in Disarray or a Brocard of Relevance? Its Applicability to the Subterranean and the United Kingdom Supreme Court Decision in Star Energy v Bocardo’ (2011) 19 APLJ 155Google Scholar.

109 [1978] QB 479.

110 142 Misc 560 (1931).

111 670 NE2d 985 (Ohio 1996).

112 ibid, 992.

113 ibid.

114 ibid, 985.

115 (1977) 38 P&CR 452, 470.

116 Similarly in In re Core Energy, LLC, [2007] EPA App LEXIS 50 the United States Environmental Protection Agency Environmental Appeals Board found that the grant of a permit from the Agency for the conversion of a pre-existing test well to an injection well for the permanent sequestration of CO2 did not confer the right to trespass, convey property rights of any sort, or authorize any injury to persons or property, or any invasion of other private rights. See Grave (n 27) 85.

117 Stamm, A, ‘Legal Problems in the Underground Storage of Natural Gas’ (1957) 36 TexLRev 161Google Scholar, 164.

118 Traditionally, the mineral estate is regarded as the dominant estate so that the mineral owner ‘has the right to the use and possession of so much of the surface as is reasonably required in the operation of his [or her estate]’: Getty Oil Co v Royal, 422 S W 2d 59, 593 (Tex Civ App 1967). See Mansfield, ME, ‘On the Cusp of Property Rights: Lessons from Public Land Law’ (1991) 18 Ecology Law Quarterly 43Google Scholar, 67.

119 Wenzel, MA, ‘Comment: the Model Surface Use and Mineral Development Accommodation Act: Easy Easements for Mining Interests’ (1993) 42 AmULRev 607Google Scholar, 618.

120 Davison v Reynolds, 103 S E 248, 249 (Ga. 1920).

121 For a list of authorities, see Hayano, D, ‘Guarding the Viability of Coal and Coal-Fired Power Plants: A Road Map for Wyoming's Cradle to Grave Regulation of Geologic CO2 Sequestration’ (2009) 9 Wyoming Law Review 139CrossRefGoogle Scholar, n 16.

122 Wilson, E and de Figueiredo, M, ‘Geologic Carbon Dioxide Sequestration: An Analysis of Subsurface Property Law’ (2006) 36 ELR 10114Google Scholar, 10123. See too Lyndon, J, ‘The Legal Aspects of Underground Storage of Natural Gas: Should Legislation Be Considered before the Problem Arises?’ (1961) 1 Alberta Law Review 543Google Scholar, 545.

123 Wyoming Statute section 34-1-152.

124 IOGCC, Storage of Carbon Dioxide in Geological Structures: A Legal and Regulatory Guide for States and Provinces (2007) 22Google Scholar.

125 Illinois, Louisiana, Oklahoma and Texas have legislated to provide for ownership of the sequestered CO2, but have not addressed pore space ownership.

126 Zadick (n 91) 267.

127 ibid, 266.

128 Klass and Wilson (n 90) 405.

129 ibid.

130 Sprankling (n 84) 1021.

131 Endres, AB, ‘Geologic Carbon Sequestration: Balancing Efficiency Concerns and Public Interest in Property Rights Allocation’ UIllLRev 623Google Scholar, 628.

132 Klass and Wilson (n 90) 406.

133 Gresham, RL, Geologic CO2 Sequestration and Subsurface Property Rights: A Legal and Economic Analysis (2010)Google Scholar Dissertations. Paper 8. <http://repository.cmu.edu/dissertations/8> 169–70.

134 ibid 169.

135 Department of Primary Industries, A Regulatory Framework for the Long-term Underground Geological Storage of Carbon Dioxide in Victoria: Discussion Paper (January 2008)Google Scholar para 5.2 <http://new.dpi.vic.gov.au/__data/assets/pdf_file/0012/10920/CCS-Regulatory-Framework-Discussion-Paper.pdf>. For a discussion of arguments for and against the assertion by the US federal government of ownership over all pore space below a certain depth, see Brugato, T, ‘The Property Problem: A Survey of Federal Options for Facilitating Acquisition of Carbon Sequestration Repositories’ (2011) 29 VaEnvtlLJ 305Google Scholar 330–42.

136 Prosterman, RL and Hanstad, T, Legal Impediments to Effective Rural Land Relations in Eastern Europe and Central Asia (The World Bank 1999) 32Google Scholar.

137 See e.g. section 44(3) of the Constitution of the Federal Republic of Nigeria 1999.

138 As in Chile where the three state-run mining companies are the Corporación Nacional del Cobre (CODELCO), the Corporación de Fomento de la Producción (CORFO), and Empresa Nacional de Minería (ENAMI).

139 e.g. Spain.

140 Prosterman and Hanstad (n 136) 32.

141 Global CCS Institute, The Global Status of CCS: 2010 (2011) 107Google Scholar <http://cdn.globalccsinstitute.com/sites/default/files/publications/12776/global-status-ccs-2010.pdf>. Similar statements appear in other policy and guidance documents, e.g. International Risk Governance Council, Regulation of Carbon Capture and Storage (2008) 13Google Scholar <http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf>; International Energy Agency, Carbon Capture and Storage Model Regulatory Framework (OECD/IEA 2010)Google Scholar 3.2.3 <http://www.iea.org/publications/freepublications/publication/model_framework.pdf>; Aldrich, EL, Koerner, C and Solan, D, Analysis of Existing and Possible Regimes for Carbon Capture and Sequestration: A Review for Policymakers (Energy Policy Institute/Centre for Energy Studies 2011) 16Google Scholar <http://epi.boisestate.edu/media/9042/epi%20liability%20regimes%20for%20ccs_review%20for%20policymakers.pdf>.

142 Section 339 of the Lands Act 1958.

143 The 2008 Act is based on the Victorian Petroleum Act 1998.

144 Greenhouse Gas Geological Sequestration Act 2008, section 3.

145 ibid, section 15.

146 See Gibbs, M, ‘Australian Regulation of GHG Storage’ in Havercroft, I, Macrory, R and Stewart, RB (eds), Carbon Capture and Storage: Emerging Legal and Regulatory Issues (Hart Publishing 2011) 169Google Scholar.

147 Section 15(1) of the Mines and Minerals Act, as amended by the Carbon Capture and Storage Statutes Amendment Act 2010.

148 Section 15(3).

149 Section 15(4).

150 The Storage of Carbon Dioxide (Licensing etc) Regulations 2010.

151 Logan (n 102) 561.

152 Endres (n 131) 638. It may be added that in a world of zero transaction costs, it would not matter who held the initial entitlement to pore space on the basis that the parties would negotiate an efficient solution. In the real world, however, where transaction costs are ubiquitous, the initial entitlement is crucial.

153 Pöyry Energy Consulting, Carbon Capture and Storage: Milestones to deliver large-scale deployment by 2030 in the UK (2009) 18Google Scholar, 35<http://downloads.theccc.org.uk/Poyry_-_CCS_Timelines_and_Milestones_for_CCC_2009_final.pdf>.

154 Storage of Carbon Dioxide (Access to Infrastructure) Regulations 2011, regs 7, 10 and 12.

155 ibid, reg 12(9).

156 West, M, ‘The Ownership of Surface Voids Created by Mineral Extraction’ (2011) 1 Conveyancer and Property Lawyer 30Google Scholar, 43. Such an approach is consistent with the reasoning underpinning the decision of the Supreme Court in Bocardo.

157 CCS involves what have been described as ‘low probability but nevertheless high consequence risks’ with the potential to affect, e.g. freshwater aquifers, mineral deposits and wildlife: Abazari, A and Wussow, TW, ‘Carbon Capture and Storage: We're Almost There’ (2011) 74 TexBJ 398Google Scholar, 401.

158 Severinsen, G, ‘Towards an Effective Legal Framework for the Geo-Sequestration of Carbon Dioxide in New Zealand’ (2010) 16 Canterbury Law Review 331Google Scholar.