The current administration’s focus on climate change has prompted a renewed interest in carbon capture, utilization, and sequestration (CCUS). In July of this year, the White House Council on Environmental Quality (CEQ) issued a report to Congress stating the Biden administration “is committed to accelerating the responsible development and deployment of CCUS to make it a widely available, increasingly cost-effective, and rapidly scalable climate solution across all industrial sectors.”[1]

Louisiana has been characterized as an “emerging hub of carbon capture deployment” in large part due to the prevalence of existing industries such as refineries and chemical manufacturers. Proponents of carbon capture believe that Louisiana has ample storage capacity (such as depleted oil and gas fields), an experienced workforce, and the necessary infrastructure, including an established existing network of pipelines, to utilize carbon capture technologies to reduce its carbon footprint. Providing further incentive, the  Louisiana Legislature has passed laws providing the state will assume liability for sequestered carbon dioxide after ten years if certain conditions are met, see La. Rev. Stat. § 30:1109(A), and has provided a cap on civil liability actions for noneconomic losses. See La. Rev. Stat. § 30:1109(B).

As with any new industry, there are a number of questions facing companies interested in availing themselves to the benefits of CCUS. In addition to regulatory compliance, companies will need to obtain the right to utilize the “pore space” or the subsurface cavity which is either naturally or artificially created for carbon storage. However, to obtain this approval, operators must determine ownership of the pore space, a question which becomes more complicated when the mineral and surface estates have been severed.

Nationwide, a majority of courts have concluded that the pore space is owned by the surface owner, but the issue of “who owns the pore space” remains unresolved.  In addition, companies may need to consider whether use of the “pore space” interferes with a severed mineral estate. While in Louisiana, these issues have not been directly examined in the context of CCUS, existing jurisprudence provides guidance.  In United States v. 43.42 Acres of Land, the court examined ownership of a subsurface cavern created by the removal of salt.  520 F. Supp. 1042, 1045 (W.D. La. Aug. 26, 1981).  Recognizing Louisiana has adopted a “non-ownership” theory of mineral rights, the court reasoned that the mineral estate did not have ownership interest in the subsurface strata containing the spaces where the minerals are found.  Id. at 1046.  Therefore, it was the surface owner, rather than the mineral, who was entitled to compensation for the value of the cavern created by removal of salt.  Id. The Federal Fifth Circuit Court of Appeals reached the same conclusion in Mississippi River Transmission v. Tabor, but held that while the surface owner owns the storage rights, the “mineral servitude owner…enjoys the right to participate in production of the remaining natural gas and condensate in the reservoir…and must be compensated for the expropriation of this right.” 757 F.2d 662, 672 (5th Cir. 1985), citing, S. Natural Gas Co. v. Poland, 406 So. 2d 657, 666 (La. App. 2d Cir. 1981).  Because these questions have never been directly examined in the context of CCUS, the most cautious approach would be for companies to obtain approval from both the surface and mineral owner.  But the legislature in Louisiana has provided storage operators with another option – expropriation.

In 2009, the Louisiana Legislature enacted the Louisiana Geologic Sequestration of Carbon Dioxide Act which declared it to be in the “public interest for a public purpose and the policy of Louisiana that the geologic storage of carbon dioxide will benefit the citizens of the state and the state’s environment  by reducing greenhouse gas emissions.” This Act was amended in 2020 to clarify certain definitions and procedures, to provide the power and duties vested with Louisiana’s Commissioner of Conservation, and to clarify the right of eminent domain and expropriation.[2]

The ability to expropriate the surface and subsurface of property used for CCUS is especially important due to questions surrounding ownership of the subsurface “pore space” zone where carbon is injected.  Louisiana law provides that an operator is authorized to “exercise the power of eminent domain and expropriate needed property to acquire the surface and subsurface rights and property interests necessary or useful for the purpose of constructing, operating, or modifying a storage facility and the necessary infrastructure including the laying, maintaining, and operating of pipelines for the transportation of carbon dioxide to a storage facility.”  La. Rev. Stat § 30:1108(A)(1).   To expropriate property, a storage operator must first obtain necessary permits and a certificate of public convenience and necessity from LDNR’s Commissioner of Conservation.  Id.

As with any emerging industry, there still exists much legal and regulatory uncertainty.  Already this year, we have seen significant upswings in legislation and regulations governing CCUS nationwide.  Therefore, we certainly expect the question of pore space ownership to receive increasing attention from state legislatures and court systems as more and more companies turn their interest towards CCUS.


[1] Council on Environmental Quality Report to Congress on Carbon Capture, Utilization, and Sequestration, available at:

[2] Act No. 61 (2020), available at: