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Courts consider two main theories when presented with this issue: the English Rule and the American Rule. The English Rule dictates that pore space belongs to the mineral estate because they created it by extracting the minerals. Conversely, the American Rule states that the surface estate owns the pore space.
Under American rule, the mineral estate holder owns the minerals but not the geologic formation. The surface owner owns the geologic pore space and has storage rights.
Ownership. W.S. § 34-1-152 grants pore space ownership to the surface owner and allows it to be severed from the surface and separately conveyed. In 2009 W.S. § 35-11-316 created an 80% unitization requirement.
Pore space ownership in the United States varies from state to state and can be owned by the State, by the U.S. government or private individuals. In other countries, subsurface rights are controlled entirely by the government.
Alaska has important competitive advantages for the development of a CCUS industry. The State owns the pore space used for storage under State lands, which allows leasing of large contiguous storage sites.
Ownership of pore space underlying surfaces. (a) The ownership of all pore space in all strata below the surface lands and waters of this state is declared to be vested in the several owners of the surface above the strata.
Carbon stored underground could find multiple ways to escape and seep back into the atmosphere due to chemical reactions that take place between the carbon dioxide, rocks, water in the pores and even the cement from abandoned wells, ing to researchers from Penn State University.
5 The summary of relevant case law below demonstrates that courts in Montana, Oklahoma, Louisiana, New York, Michigan, West Virginia, New Mexico, and California all recognize the surface owner's ownership of underground pore space for gas storage operations.