Below surface

Pioneer Press North Dakota had adopted a law, proposed by the state’s Industrial Commission that oversees oil, gas and mineral removal, that gave energy companies broad power to continue injecting salt water, an unwanted byproduct of their drilling, and added rights to pump carbon dioxide deep underground and leave it there for eternity. This is becoming important as the cheapest method of “carbon sequestration,” which is deemed vital to reducing greenhouse gas emissions.

The law was very favorable to companies wanting to inject. It stiffed owners of land overlying the areas that might be filled. This created strong opposition, and a landowners association challenged it.

North Dakota had made an environmental claim on the subterranean space, but the landowners, who felt shafted by the fracking boom, said not so fast. They wanted in on the deal that seemed to pad everyone else’s pockets. So who owns the ‘pore space’ and who gets to benefit from it economically?

In mid-January, a state judge amped up the controversy in a broad decision favoring the landowners. He struck down the whole law as violating both the North Dakota and U.S. constitutions. He ruled it was a “taking” of private property as banned by our Fifth Amendment.

One can speculate on the line of thinking the legislators in North Dakota may have been following. Since everyone would benefit from the purging of by-products into the depths of the earth, than the assignment of the use of pore space to the energy companies is fulfilling a traditional public good.

As I’ve said here many times before, I do not believe in natural public goods. And this is just another example. Although the act of burying the carbon dioxide has a positive environmental outcome for the citizens of North Dakota, it is the land and the rights attached to the land that are under discussion. The land is privately owned by the landowners.

My view is that what is pubic and what is private comes about through tradition and legislation and cultural norms. In this case the courts decided. As the author says, there will be more to follow regarding “pore space.”

Legal scholars will write scholarly papers and economists will construct mathematical models. There are precedents in water and oil laws going back decades, but compressed gases that should stay there for millenia differ enough to open new controversy and give topics to hundreds of grad students who need thesis topics. And the outcomes will affect all of us.

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