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Unpublished Paper
Climate Change, Carbon Sequestration, and Property Rights
ExpressO (2009)
  • Alexandra B. Klass
  • Elizabeth J. Wilson

This Article considers the role of property rights in efforts to transport, inject, and store underground hundreds of million of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to combat dangerous 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 implement CCS, private operators and state and federal governments must be able to access hundreds of millions of acres of “pore space” roughly a kilometer below the earth’s surface in which to store CO2 for hundreds to thousands of years. Here, we explore 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. We conclude that subsurface storage of CO2 may result in a taking where the CO2 storage interferes directly with existing or reasonably foreseeable economic uses of the subsurface. More often, however, because the public interest in addressing climate change is so strong, and the extent of interference with an owner’s expectations regarding actual use of the subsurface is so small, no taking will occur. In order to accommodate the full range of property rights and takings issues that will arise with CCS, we propose a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO2 storage.

  • Climate Change,
  • Carbon Sequestration,
  • Property Rights,
  • Takings,
  • Eminent Domain,
  • Coal,
  • Electricity,
  • Fifth Amendment
Publication Date
March 11, 2009
Citation Information
Alexandra B. Klass and Elizabeth J. Wilson. "Climate Change, Carbon Sequestration, and Property Rights" ExpressO (2009)
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