CCS Briefing Paper #3:
LONG-TERM LIABILITY
March 13, 2009
The background research paper was funded by the United Kingdom Strategic Programme Fund
pursuant to a grant awarded to Camco International Group, Inc. during the 2008-2009
timeframe. The grant funds a series of stakeholder meetings discussing carbon capture and
sequestration policy issues in Wyoming, Colorado, Utah, and Montana. The principal authors of
this research paper are Vanessa Finch and Jen Dill, Center for Energy and Environmental Security
at the University of Colorado, and Elizabeth Lokey, M.S., Ph.D., Camco International Group. This
White Paper was prepared for informational purposes only as background information for these
stakeholder discussions on carbon capture and sequestration. It has not received independent
legal review and does not represent the perspective of the University of Colorado or Camco
International Group, Inc. It should not be relied upon for legal advice and does not establish an
attorney-client relationship. While potential advantages or disadvantages of different policy
options may be identified, no attempt has been made to state the authors’ preferences for one
option over another, and no preferences should be inferred.
Table of Contents
Part I: Long Term Management and Liability Policy Options ....................................................... 4
Long-term Management of CCS Sites................................................................................ 4
1.
a.
Federal Government...................................................................................................... 4
b.
State ............................................................................................................................... 5
c.
Operator of CCS sites ..................................................................................................... 5
d.
Landowner ..................................................................................................................... 6
e.
Hybrid Approach............................................................................................................ 6
f.
EPA’s Proposed Rule for a UIC Class VI Well................................................................. 7
Liability to Third Parties..................................................................................................... 7
2.
a.
Private Liability Insurance ............................................................................................. 8
b.
Government Indemnification of Project Operator’s Third-Party Claims..................... 9
c.
Liability Cap.................................................................................................................... 9
d.
Liability Exemption ...................................................................................................... 10
e.
Administrative Compensation Fund ........................................................................... 10
Part II: Judicial Doctrines for Addressing Liability................................................................... 11
a.
Trespass........................................................................................................................ 11
b.
Conversion ................................................................................................................... 13
c.
Private Nuisance .......................................................................................................... 13
d.
Negligence.................................................................................................................... 13
e.
Strict Liability ............................................................................................................... 14
Policy makers seeking to establish a legal and policy framework conducive to CCS will
need to address long-term liability issues associated with the injection and storage of CO2
underground. Most analysts agree that CCS risks not being deployed unless greater clarity of
long-term responsibility for post-closure upkeep and accidental release can be achieved. This
background paper is intended to present an overview of legal and policy options available for
establishing that liability framework.
This paper was written as supporting background information for stakeholders involved
in stakeholder meetings that addressed, among other issues, long-term liability issues. The
major issues covered at the stakeholder forums are listed below.
Who should be responsible for long-term management of the CO2 storage site?
How is risk allocated among parties if there are multiple owners of the injected
gas?
Which type of insurance plan should be used?
What type of contractual liability for storage should be used?
This paper generally addresses these four issues. It does not address operational
liability such as the health, safety, and environmental risks associated with CO2 capture,
transport, and injection. This is because the operational liability that is already well-established
in enhanced oil recovery will likely be applied to CCS.i Hence, this paper primarily focuses on the
post-operational liability associated with the CO2 once it is injected into the ground. Part I
focuses on long term management and liability policy options including, essentially addressing
the first three bulleted items listed above. Part II provides an overview of contractual issues and
judicial doctrines pertaining to liability issues that may come into play as the CCS industry
evolves. It is presented here as context for understanding the backdrop against which the policy
options discussed in Part I will be implemented.
Part I: Long Term Management and Liability Policy Options
1. Long-term Management of CCS Sites
A critical issue for policy makers seeking to move CCS forward is to decide what legal
liability regime will be established to assign responsibility for the long-term management of CCS
storage sites. The long-term management could be assigned as follows;
Responsibility is with the federal government,
Responsibility is with the state government where the CCS project is located,
Responsibility is with the operator of the CCS storage site,
Responsibility is with the landowner, or
A hybrid approach to long-term management.
a. Federal Government
The first option would be for Congress to enact legislating assigning responsibility for
long-term management to the federal government. Several possible advantages to this
approach have been noted. First, the attachment of responsibility for CCS sites would be an
attachment to an institution that is the most likely to last over the time period that CCS sites will
have to be monitored and managed. Second, the federal government is best positioned to
uniformly regulate the sites and their unknown risks. Lastly, as a matter of public policy, the
federal government may be the best institution to administer a nationwide monitoring and
management system that does not deteriorate throughout time. The International Risk
Governance Council suggests that “[p]ublic assumption of long-term responsibility will
probably be required at some point after site closure, conditional upon proof that CO2
storage is behaving predictably, as governments are the only entities that can make credible
commitments over such long storage time periods.”ii On the other hand, one could ask
whether the public would receive a benefit commensurate to the magnitude of the risks
and responsibilities that it would be assuming. Economists may also note that public
collectivization of risks could raise moral hazard issues, and that some degree of private
assumption of those risks and costs could ultimately prove more effective at mitigating and
reducing those risks and costs.
b. State
Another option for long-term management is the state. State management has the
advantage of utilizing its semi-local status to tailor management to the specific sites. However,
state management also has the disadvantage of not providing for uniformity to sites that cross
state boundaries. The Interstate Oil and Gas Compact Commission’s Task Force on Carbon
Capture and Geologic Storage published a Guide called A Legal and Regulatory Guide for States
and Provinces, which suggests that states are “likely to be best positioned to provide the
necessary ‘cradle to grave’ regulatory oversight of geologic storage of CO2.”iii This idea has been
utilized in the Low-Level Radioactive Waste Policy Act, where states are responsible for
providing, either by themselves or in cooperation with other states, for the disposal of low-level
radioactive waste, except low-level radioactive waste essentially created by the government.iv
c. Operator of CCS sites
This option gives long-term management to the operator of CCS sites. It has the
advantage of tailoring management to the site and thus potentially making the scheme more
efficient. However, a significant potential disadvantage of private responsibility would be that
the risk and responsibility could change ownership over an extended time period, creating
accountability issues. Another significant concern with this approach is whether a private
company could plausibly and credibly take on a risk of this duration and magnitude and obtain
adequate insurance to cover the risks and responsibilities. Of note internationally, Australia’s
Regulatory and Guiding Principles for Carbon Capture and Sequestration states that, under
Australia’s current law, long-term liability for CCS would be left with the operator.v However, in
recognizing the unique long-term status of CCS liability, the report recognized the proposal that
government might possibly need to take over site liability after the regulator had approved the
site for closure.vi
d. Landowner
Another approach would give long-term management to the owner of the land upon
which the site is being operated. This option assumes CCS site operators merely leased the
underground storage space instead of acquiring ownership for the space. The landowner could
negotiate in the lease some financial benefit from storing the CO2 under their land in return for
shouldering the long-term management and risks of the site. However, it is questionable how
many private landowner would be willing and able to take on such an unknown risk and for such
a long period of time. Furthermore, from a public policy standpoint, even if the private
landowner was willing to take on that risk, it is not clear that such an approach would be
sufficiently protective of the public interest over the long term.
e. Hybrid Approach
Other scholars suggest a hybrid approach of long-term management for CCS storage
sites. The Interstate Oil & Gas Compact Commission Model Rules for CCS advise a two-stage
approach to management: a closure period management and then post-closure period
management. vii Closure period is that period of time when injection is no longer occurring, the
well has been plugged, and monitoring has begun. Monitoring continues for a defined period of
time (10 years unless otherwise designated by the state regulatory authority) after injection
activities cease and the injection well is plugged.viii During this time, the operator of the storage
site is responsible to maintain an operational bond and individual well bonds.ix After the closure
period, the liability for ensuring the site remains a secure storage site and monitoring would
transfer to a trust fund administered by the state.x Please see graphic below for a depiction of
this process.
Figure 1: Stages of a CCS well
Injection
Closure
Post-closure
10 years
f. EPA’s Proposed Rule for a UIC Class VI Well
The EPA, in its July 25, 2008 Proposed Rule for a new Class VI well under its current
Underground Injection Control Program has not yet chosen the appropriate stewardship
model for CCS sites after site closure.xi However, the UIC Class VI well proposed rules state
that owners or operators would no longer need to demonstrate that they have financial
assurance after the post-injection site care period has ended, which would be when the Director
approves the completed post-injection site care and site closure plan and then determines that
the injected gas in the condensed form of a fluid no longer poses a threat to underground
sources of drinking water (e.g., the fluid no longer exhibits a propensity to move or migrate out
of the injection zone to any point where it could endanger an underground source of drinking
water).xii This statement could be interpreted to suggest, although not explicitly, some degree
of public assumption of post-closure management responsibility.
2. Liability to Third Parties
In addition to long-term management, policy makers would also need to decide what
liability framework should be used to address the project operator’s liability to third parties for
accidents or long-term damages to persons or property. A good place to begin is to identify the
current liability structures that are in place to address other large scale liability issues. These
liability structures include the following:
The Project operator obtains private liability insurance to cover the risk.
Government agrees to indemnify the project operator for third-party claims.
Government establishes a liability cap for project operators.
Government establishes a liability exemption for project operators.
Government establishes a mandatory administrative compensation fund.
As discussed below, the liability framework could consist of one or more elements from each of
these options. The approach chosen to allocate the payment of CCS liability depends on how
much state or federal involvement is favored, and should take into account the long-term
aspects of CCS management, as well as the level of risk associated with such projects.
a. Private Liability Insurance
The first option would be for the project operator to obtain private liability insurance
from private insurance companies. xiii The insurance could involve reinsurance schemes to assist
with the large-scale and long-term liability associated with CCS.xiv Given that the CCS industry is
in the nascent stages, a significant issue with the private insurance approach is the uncertainty
of risk and hence difficulty in premium-setting.xv Furthermore, when dealing with the large
geographic areas that are likely to be involved in CCS sites, it may be difficult for the private
insurance industry to monetize and insure these types of social cost and risks. Consequently, it
may be necessary to combine the private liability approach with one or more of the other
approaches discussed below by, for example, establishing limits on project operator liability at
the state and/or federal level. xvi
b. Government Indemnification of Project Operator’s Third-Party Claims
Another option would be for the government to indemnify the project operator for any
claims made by third parties for harm and damages.xvii The government entity could be either
the federal government or the state government where the project is located. For instance, a
bill that was introduced to the Illinois legislature during the 2006 session, but did not pass,
stated : “If a civil proceeding is commenced against an operator arising from the escape or
migration of injected CO2, then the Attorney General shall, upon timely and appropriate notice
by the operator, appear on behalf of the operator and defend the action. … [U]nless the court or
jury finds that the action was intentional, willful, or wanton misconduct, the State shall
indemnify the operator for any damages awarded and court costs and attorneys’ fees assessed
as part of any final and un-reversed judgment or shall pay the judgment.”xviii Similarly, a World
Resources Institute Brief contemplates federal indemnity for CCS projects, which would be
“limited to a discrete set of pilot projects designed to test the parameters and scope of CCS
technology, and limited only to discrete risks....”xix
c. Liability Cap
A liability cap is an option that works to limit liability, usually through legislation, to
private parties.xx Here, a CCS storage site operator would be financially responsible for all
liability beneath a set dollar amount of damages, known as the cap, but not above. xxi An
example of a liability cap is the Price-Anderson Act, which governs liability for nuclear power
plants.xxii Under the Price-Anderson Act, licensees obtain the maximum amount of liability
insurance available on the market, which is currently set at $300 million per reactor. xxiii Any
valid monetary claims that fall within this amount are paid for by the insurers.xxiv Beyond that,
the Price-Anderson Fund, financed by the licensees themselves in indemnity fees as provided for
by the Act, makes up the difference.xxv Any costs exceeding first the insurance and then the
Price-Anderson fund are covered by the federal government.xxvi This approach has the
advantage of giving site operators the incentive to follow the standards of CCS closely, and
simultaneously limits the liability to also create the incentive for more CCS storage sites.
d. Liability Exemption
A liability exemption is essentially a liability cap set at zero, where the operator of the
CCS site is completely immune from liability.xxvii As long as the site operator follows all CCS safety
regulations, it would be completely exempt from all claims.xxviii This would encourage private
industry to implement CCS technology by removing the liability costs associated with CCS.xxix
However, this would also deprive possible victims of necessary compensation unless the federal
government agreed to take on the liability that would have been borne by the CCS operators.xxx
Even if the federal government agreed to a liability shield, it may not adequately protect the
public welfare as CCS operators would have less incentive to adopt the safest practices.xxxi
e. Administrative Compensation Fund
Lastly, an administrative compensation fund is a fund into which CCS operators would
make payments and the fund pool would be used to compensate parties for damages.xxxii This
approach is supported by the Proposed Carbon Sequestration Legislation prepared by the
University of Houston Law Center.xxxiii Furthermore, the Comprehensive Environmental Response
Compensation and Liability Act (also known as CERCLA) uses this model, and its Superfund
compensation trust fund is financed in part through an industry tax.xxxiv The issues with this
approach include temporal problems if the industry does not survive far into the future (and the
fund thus fails) and jurisdictional problems if CO2 leaks across state or national borders.xxxv
Part II: Judicial Doctrines for Addressing Liability
Part II provides an overview of judicial doctrines pertaining to long-term tort liability
issues that may come into play as the CCS industry evolves. It is presented here as context for
understanding the backdrop against which the policy options discussed in Part I will be
implemented. Tort liability generally refers to a person’s right to compensation for unlawful
harm caused by another person’s conduct, for example, an automobile accident. In the CCS
context, tort liability could potentially arise due to the result of loss of containment of the CO2
through abandoned wells, wells that have been poorly completed, escape through pores of lowpermeability caprock, openings in the caprock, migration via faults, induced seismicity,
groundwater contamination, and harm to human health and the environment.xxxvi It is
inevitable that tort liability issues will arise in the context of CCS activities due to the actual or
perceived risk of large or catastrophic damages resulting from CCS activities, the large scale of
projected CCS activities, the long-term temporal period over which risks may manifest
themselves, and uncertainties of geophysical systems collectively.xxxvii Therefore, policy makers
seeking to advance CCS may find it advantageous to address certain third party liability issues
proactively rather than leaving it entirely up to the courts to decide on a case-by-case basis. xxxviii
In the absence of express legislative guidance, the judicial system would likely address
any third party tort claim by applying existing legal doctrines, including: subsurface trespass,
conversion, private nuisance, negligence, and strict liability.xxxix To help provide context, each of
these doctrines is discussed below, as well as some initial observations on their potential
relevance to CCS.
a. Trespass
The common law tort of trespass constitutes an “intentional and unprivileged use or
other invasion of another person’s real property.”xl Subsurface trespass has been used as an
action in underground injection for enhanced oil recovery projects because of the possibility for
the injected fluids to disperse from the injection well and make a subsurface entry into an
adjoining property.xli However, courts have been cautious in finding liability for injected fluid
subsurface entries due to the strong public policy of promoting these types of activities.xlii
Enhanced oil recovery operations have substantially shielded unit operators from liability for
subsurface trespass, but the courts have applied limited liability in this context to the extent the
operation reduces the ability of the adjoining property to perform such operations.xliii
Furthermore, good faith often helps to offset damages and limit them to the value in place of
the oil and gas removed, where good faith is defined as an “honest and a reasonable belief in
the superiority of one’s title.”xliv In Railroad Comm’n of Tex. v Manziel, 361 S.W.2d 560, 568 (Tex.
1962), the court held that injections associated with state-authorized enhanced oil recovery
projects would not give a cause of action for trespass, even where fluids moved across property
lines. This is generally a rule of non-liability called the negative rule of capture, where less
valuable substances in the subsurface can migrate across property lines and replace more
valuable substances without incurring liability.xlv Essentially, the valuable substance is forced
into the subsurface space that the less valuable substance originally was so that the two
generally switch places. Furthermore, in unitization projects, operators in the unitization
project are not liable for willful subsurface trespass to owners who refused to join the
projects.xlvi
Hence, subsurface trespass could apply similarly to subsurface storage of CCS (as its
operation is quite similar to enhanced oil recovery operations), but for the same reasons that
enhanced oil recovery trespass actions have found only limited liability,xlvii CCS subsurface
trespass liability might also be limited, assuming the operator acted in good faith and under the
appropriate injection and storage standards. Second, if liability is allowed, it is likely to be
limited if CCS operators work in a regime similar to unitization that is available in enhanced oil
recovery actions. This is because unitization can spread liability across the unitized field
operators.
b. Conversion
Conversion is another form of a tort action that could have applicability to CCS.
Conversion is defined as “[t]he wrongful possession or disposition of another's property as
if it were one's own; an act or series of acts of willful interference, without lawful
justification, with an item of property in a manner inconsistent with another's right,
xlviii
whereby that other person is deprived of the use and possession of the property.”
Some plaintiffs have pursued conversion for subsurface entry by an adjacent owner, and the
courts have often applied good faith/bad faith standards for damages in this context.xlix Also,
courts in the 5th Circuit and in the Texas Court of Appeals have permitted an aggrieved
landowner to recover conversion damages for oil and gas produced from a trespassing well.l In
CCS, this action could apply in a scenario where the CO2 is knowingly injected into a reservoir
that stretches across a different property, enabling to affected property owner to bring a claim
for conversion.
c. Private Nuisance
Private nuisance is defined as “a substantial and unreasonable interference with the
plaintiff’s use and enjoyment of his real property.”li Private nuisance actions might be available
in CCS, as some plaintiffs have similarly pursued nuisance in the context of injected fluids entry
in the subsurface across property lines.lii In CCS, private nuisance or perceived leakage could be
implicated if CO2 seeped into a neighboring landowner’s subsurface land.
d. Negligence
Negligence is defined as “[t]he failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation; any conduct that falls below the
legal standard established to protect others against unreasonable risk of harm, except for
conduct that is intentionally, wantonly, or willfully disregardful of others' rights.”liii Negligence in
CCS actions would require that plaintiffs establish the unreasonableness of defendants’
operations. Thus, a negligence action could be implicated if injecting operators construct the
well negligently or do not take the care required to detail the reservoir so that there is CO2
leakage on neighboring property or surface damage to the neighboring property from a
negligently constructed well. However, in subsurface entry cases so far, the proof requirement
of unreasonableness for a negligence action has led plaintiffs to choose to pursue trespass
causes of action instead.liv
e. Strict Liability
Strict liability doctrine states that “[o]ne who carries on an abnormally dangerous
activity is subject to liability for harm to the person, land or chattels of another resulting from
the activity, although he has exercised the utmost care to prevent the harm.”lv Hence, strict
liability could arguably be applied to CCS if it is perceived as a high risk activity. This would mean
that any damage or leakage from a CCS operation onto neighboring lands would create liability
for the CCS injector or storage operator. When deciding whether a strict liability regime is
appropriate, countervailing weight could be given to the public interest in capturing and storing
CO2 that might otherwise be released into the atmosphere. Strict liability could discourage the
private sector from implementing CCS.lvi
i
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 11 (2007).
ii
Int’l Risk Governance Council, Regulation of Carbon Capture and Storage 7-8 (2008), available at
http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf.
iii
Interstate Oil and Gas Compact Commission, Task Force on Carbon Capture and Geologic Storage, A
Legal and Regulatory Guide for States and Provinces 5 (2007), available at
http://www.eei.org/meetings/nonav_2007-10-18-km/CCS_IOGCClegalregulGuideExecSumm.pdf.
iv
42 U.S.C.A. § 2021c (West 2008).
v
Ministerial Council on Mineral and Petroleum Resources, CO2 Capture and Geological Storage:
Australian Regulatory Guiding Principles 43 (2005), available at
http://www.ret.gov.au/resources/Documents/ccs/CCS_Aust_Regulatory_Guiding_Principles.pdf.
vi
Id. at 42.
vii
Interstate Oil and Gas Compact Commission, Task Force on Carbon Capture and Geologic Storage, A
Legal and Regulatory Guide for States and Provinces 4 (2007), available at
http://www.eei.org/meetings/nonav_2007-10-18-km/CCS_IOGCClegalregulGuideExecSumm.pdf.
viii
Interstate Oil and Gas Compact Commission, Task Force on Carbon Capture and Geologic Storage, A
Legal and Regulatory Guide for States and Provinces 4 (2007), available at
http://www.eei.org/meetings/nonav_2007-10-18-km/CCS_IOGCClegalregulGuideExecSumm.pdf..
ix
Interstate Oil and Gas Compact Commission, Task Force on Carbon Capture and Geologic Storage, A
Legal and Regulatory Guide for States and Provinces 4 (2007), available at
http://www.eei.org/meetings/nonav_2007-10-18-km/CCS_IOGCClegalregulGuideExecSumm.pdf.
x
Interstate Oil and Gas Compact Commission, Task Force on Carbon Capture and Geologic Storage, A
Legal and Regulatory Guide for States and Provinces 4 (2007), available at
http://www.eei.org/meetings/nonav_2007-10-18-km/CCS_IOGCClegalregulGuideExecSumm.pdf.
xi
Federal Requirements under the Underground Injection Control (UIC) Program for CO2 (CO2) Geologic
Sequestration (GS) Wells; Proposed Rule, 73 Fed. Reg. 43,492,43,522 (proposed July 25, 2008) (to be
codified at 40 CFR pts. 144, 146)
xii
Federal Requirements under the Underground Injection Control (UIC) Program for CO2 (CO2) Geologic
Sequestration (GS) Wells; Proposed Rule, 73 Fed. Reg. 43,492,43,520 (proposed July 25, 2008) (to be
codified at 40 CFR pts. 144, 146)
xiii
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 11 (2007).
xiv
See Int’l Risk Governance Council, Regulation of Carbon Capture and Storage 9 (2008), available at
http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf.
xv
THE PROGRAM TO FACILITATE INTERAGENCY ENVIRONMENTAL COOPERATION, INTERAGENCY
ENVIRONMENTAL COOPERATION CLASS, THE ENVIRONMENT, ENERGY AND NATURAL RESOURCES LAW
CENTER AT THE UNIVERSITY OF HOUSTON LAW CENTER, WHITE PAPER IN SUPPORT OF PROPOSED CARBON
GEOLOGIC SEQUESTRATION LEGISLATION D(2)(b)(1) (citing KENNETH S. ABRAHAM, ENVIRONMENTAL
LIABILITY AND THE LIMITS OF INSURANCE, 88 Colum. L. Rev. 942, 962 (1988), MARK DE FIGUEIREDO, THE
LIABILITY OF CO2 STORAGE 55 (Jan. 12, 2007)(unpublished Ph.D. dissertation, MIT)).
xvi
Int’l Risk Governance Council, Regulation of Carbon Capture and Storage 9 (2008), available at
http://www.irgc.org/IMG/pdf/Policy_Brief_CCS.pdf.
xvii
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 12 (2007).
xviii
H.B. 5825, 2006 Leg., (IL 2006).
xix
WILSON, E.J., M.A. DE FIGUEIREDO, C. TRABUCCHI, AND K. LARSEN, WORLD RESOURCES INSTITUTE
ISSUE BRIEF, LIABILITY AND FINANCIAL RESPONSIBILITY FRAMEWORKS FOR CARBON CAPTURE AND
SEQUESTRATION 9 (2007), available at http://pdf.wri.org/liability-and-financial-responsibility.pdf
xx
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 12 (2007).
xxi
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 12 (2007).
xxii
MARK A. FESMIRE, ET AL., NEW MEXICO ENERGY, MINERALS, NATURAL RESOURCES DEPARTMENT, OIL
CONSERVATION DIVISION, A BLUEPRINT FOR THE REGULATION OF GEOLOGIC SEQUESTRATION OF CO2 IN
NEW MEXICO 41 (2007) (citing 42 U.S.C. § 2021b et seq.), available at
http://www.emnrd.state.nm.us/ocd/documents/CarbonSequestrationFINALREPORT1212007.pdf.
xxiii
MARK A. FESMIRE, ET AL., NEW MEXICO ENERGY, MINERALS, NATURAL RESOURCES DEPARTMENT, OIL
CONSERVATION DIVISION, A BLUEPRINT FOR THE REGULATION OF GEOLOGIC SEQUESTRATION OF CO2 IN
NEW MEXICO 41 (2007) (citing 42 U.S.C. § 2021b et seq.), available at
http://www.emnrd.state.nm.us/ocd/documents/CarbonSequestrationFINALREPORT1212007.pdf.
xxiv
MARK A. FESMIRE, ET AL., NEW MEXICO ENERGY, MINERALS, NATURAL RESOURCES DEPARTMENT, OIL
CONSERVATION DIVISION, A BLUEPRINT FOR THE REGULATION OF GEOLOGIC SEQUESTRATION OF CO2 IN
NEW MEXICO 41 (2007) (citing 42 U.S.C. § 2021b et seq.), available at
http://www.emnrd.state.nm.us/ocd/documents/CarbonSequestrationFINALREPORT1212007.pdf.
xxv
Id; Nuclear Energy Institute, Price-Anderson Act Provides Effective Liability Insurance at No Cost to
the Public, Jul. 2007, available at http://www.nei.org/filefolder/price-anderson_0707.pdf.
xxvi
Id.
xxvii
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 12 (2007).
xxviii
THE PROGRAM TO FACILITATE INTERAGENCY ENVIRONMENTAL COOPERATION, INTERAGENCY
ENVIRONMENTAL COOPERATION CLASS, THE ENVIRONMENT, ENERGY AND NATURAL RESOURCES LAW
CENTER AT THE UNIVERSITY OF HOUSTON LAW CENTER, WHITE PAPER IN SUPPORT OF PROPOSED CARBON
GEOLOGIC SEQUESTRATION LEGISLATION D(2)(b)(3)
xxix
THE PROGRAM TO FACILITATE INTERAGENCY ENVIRONMENTAL COOPERATION, INTERAGENCY
ENVIRONMENTAL COOPERATION CLASS, THE ENVIRONMENT, ENERGY AND NATURAL RESOURCES LAW
CENTER AT THE UNIVERSITY OF HOUSTON LAW CENTER, WHITE PAPER IN SUPPORT OF PROPOSED CARBON
GEOLOGIC SEQUESTRATION LEGISLATION D(2)(b)(3).
xxx
THE PROGRAM TO FACILITATE INTERAGENCY ENVIRONMENTAL COOPERATION, INTERAGENCY
ENVIRONMENTAL COOPERATION CLASS, THE ENVIRONMENT, ENERGY AND NATURAL RESOURCES LAW
CENTER AT THE UNIVERSITY OF HOUSTON LAW CENTER, WHITE PAPER IN SUPPORT OF PROPOSED CARBON
GEOLOGIC SEQUESTRATION LEGISLATION D(2)(b)(3)
xxxi
THE PROGRAM TO FACILITATE INTERAGENCY ENVIRONMENTAL COOPERATION, INTERAGENCY
ENVIRONMENTAL COOPERATION CLASS, THE ENVIRONMENT, ENERGY AND NATURAL RESOURCES LAW
CENTER AT THE UNIVERSITY OF HOUSTON LAW CENTER, WHITE PAPER IN SUPPORT OF PROPOSED CARBON
GEOLOGIC SEQUESTRATION LEGISLATION D(2)(b)(3).
xxxii
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 12 (2007).
xxxiii
THE PROGRAM TO FACILITATE INTERAGENCY ENVIRONMENTAL COOPERATION, INTERAGENCY
ENVIRONMENTAL COOPERATION CLASS, THE ENVIRONMENT, ENERGY AND NATURAL RESOURCES LAW
CENTER AT THE UNIVERSITY OF HOUSTON LAW CENTER, WHITE PAPER IN SUPPORT OF PROPOSED CARBON
GEOLOGIC SEQUESTRATION LEGISLATION D(2)(c)(1).
xxxiv
MARK A. FESMIRE, ET AL., NEW MEXICO ENERGY, MINERALS, NATURAL RESOURCES DEPARTMENT,
OIL CONSERVATION DIVISION, A BLUEPRINT FOR THE REGULATION OF GEOLOGIC SEQUESTRATION OF CO2
IN NEW MEXICO 46 (2007) (citing 42 U.S.C. § 2021b et seq.), available at
http://www.emnrd.state.nm.us/ocd/documents/CarbonSequestrationFINALREPORT1212007.pdf.
xxxv
Mark Anthony de Figueiredo, et al., Center for Energy and Environmental Research, Regulating CO2
Capture and Storage 12 (2007).
xxxvi
See MARK ANTHONY DE FIGUEIREDO, ET AL., CENTER FOR ENERGY AND ENVIRONMENTAL RESEARCH,
REGULATING CO2 CAPTURE AND STORAGE 9 (2007).
xxxvii
See MARK ANTHONY DE FIGUEIREDO, ET AL., CENTER FOR ENERGY AND ENVIRONMENTAL RESEARCH,
REGULATING CO2 CAPTURE AND STORAGE 11 (2007).
xxxviii
See The Program to Facilitate Interagency Environmental Cooperation, Interagency Environmental
Cooperation Class, The Environment, Energy and Natural Resources Law Center at the University of
Houston Law Center, White Paper in Support of Proposed Carbon Geologic Sequestration Legislation
D(2).
xxxix
See The Program to Facilitate Interagency Environmental Cooperation, Interagency Environmental
Cooperation Class, The Environment, Energy and Natural Resources Law Center at the University of
Houston Law Center, White Paper in Support of Proposed Carbon Geologic Sequestration Legislation
D(2); see Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311,
344-46 (1993) (quoting Osborne M. Reynolds, Jr., Distinguishing Trespass and Nuisance: A Journey
Through a Shifting Borderland, 44 OKLA. L. REV. 227 (1991)).
xl
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 317
(1993) (quoting Osborne M. Reynolds, Jr., Distinguishing Trespass and Nuisance: A Journey Through a
Shifting Borderland, 44 OKLA. L. REV. 227 (1991)).
xli
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 335
(1993).
xlii
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 335
(1993).
xliii
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 336
(1993)
xliv
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 320
(1993) (quoting Payne v. Benavides, 693 S.W.2d 500, 504 (Tex.Ct.App. 1985)).
xlv
Railroad Comm’n of Tex. v. Manziel 361 S.W.2d 560, 568 (Tex. 1962) (quoting Note 1, Oil and Gas
Reporter, 1171; Williams and Meyers: Oil and Gas Law, s 204.5, footnote 1)).
xlvi
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 336
(1993) (citing Baumgartner v. Gulf Oil Corp., 168 N.W.2d 510, 516, 519 (Neb. 1969)).
xlvii
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 335
(1993).
xlviii
Black’s Law Dictionary 356-57 (8th ed. 2004).
xlix
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 344
(1993)
l
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 344
(1993) (citing Pan Am. Petroleum Corp. v. Long, 381 U.S. 926 (1965); Harrington v. Texaco, Inc., 339
F.2d 814 (5th Cir. 1964); Pan Am. Petroleum Corp. v. Orr, 319 F.2d 612 (5th Cir. 1963); First Nat’l Bank
v. Champlin Petroleum Co., 709 S.W.2d 4 (Tex.Ct.App. 1986)).
li
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 345
(1993) (quoting Osborne M. Reynolds, Jr., Distinguishing Trespass and Nuisance: A Journey Through a
Shifting Borderland, 44 OKLA. L. REV. 228 (1991)).
lii
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 345-46
(1993) (citing Mowrer v. Ashland Oil & Ref. Co., 518 F.2d 659 (7th Cir. 1975), Greyhound Leasing & Fin.
Corp. v. Joiner City Unit, 444 F.2d 439 (10th Cir. 1971); Boyce v. Dundee Healdton Sand Unit, 560 P.2d
234 (Okla.Ct.App. 1975); Gulf Oil Corp. v. Hughes, 371 P.2d 81 (Okla. 1962)).
liii
Black’s Law Dictionary (8th ed. 2004).
liv
Terry D. Ragsdale, Hydraulic Fracturing: The Stealthy Subsurface Trespass, 28 TULSA L.J. 311, 346
(1993) (citing Texon Drilling Co. v. Elliff, 216 S.W.2d 824 (Tex.Civ.App. 1948)).
lv
RESTATEMENT (SECOND) OF TORTS § 519(1) (2008).
lvi
The Program to Facilitate Interagency Environmental Cooperation, Interagency Environmental
Cooperation Class, The Environment, Energy and Natural Resources Law Center at the University of
Houston Law Center, White Paper in Support of Proposed Carbon Geologic Sequestration Legislation
D(2).