Senator Ryan Maher (R-28/Isabel) brings us a bill about nothing. Literally. Void, Emptiness. Absence of substance.
I’m not picking on Senator Maher. I’m just describing Senate Bill 63, which seeks to regulate “pore spaces”.
On first glance at the title, I honest-to-goodness wondered if we were going to regulate dermatologists’ offices. But no—Senator Maher sees a need for laws on gaps underground. Senate Bill 63 defines a “pore space” as “a cavity or void, whether natural or artificially created, in a subsurface sedimentary stratum.” Now that sounds like Wind Cave to me, but pore spaces include the tiny gaps between rocks and particles underground where water and gas can flow.
SB 63 writes into law the seemingly obvious idea that landowners have title to the pore space under their land as surely as they have rights to the minerals forming all those pore spaces. In other words, SB 63 tells landowners, “In addition to owning something, you own nothing!”
(At the very least, pore space law promises to be more fun than trust law.)
SB 63 says we can’t sever title to pore space from title to the overlying real property. You can’t sell the ranch but keep ownership of the space between the gravel below. (Cut to buyer conferring gravely with realtor: Hey, the contract includes an extra $10,000 charge for the pore space; what’s that? —Oh, nothing.) SB 63 does, however, permit the leasing of pore space.
Now seriously, who on earth would pay good money for nothing?
How about the frackers stashing their wastewater and industries trying to alleviate the frackers’ climate change by pumping carbon dioxide underground?
Until very recently, pore space was hardly considered a property right at all. However, the surge of interest in carbon capture and sequestration (CCS), as well as the need to store salt water produced by the oil and gas industry, as a waste product arising from oil and gas production and from hydraulic fracturing, have made pore space ownership an increasingly popular, yet extremely underdeveloped area of the law. As the law surrounding pore space develops in the coming years, it will become critically important for policymakers, legislators, judges, and lawyers to examine the consequences of decisions regarding pore space [Trae Gray, “A 2015 Analysis and Update on U.S. Pore Space Law —The Necessity of Proceeding Cautiously With Respect to the ‘Stick’ Known as Pore Space,” Oil & Gas, Natural Resources, and Energy Journal, 2015].
Maher’s SB 63 appears to copy pore space law in North Dakota, where frackers have been emptying out all sorts of pore spaces. By recognizing pore space rights as separate from mineral rights, SB 63 would appear to prevent those who extract oil and gas from then asserting ownership of the spaces they leave behind and either pumping their salty wastewater into those pore spaces without additional consideration to the landowner or selling or leasing those pore spaces for carbon sequestration.
By clearly separating pore spaces from the minerals around them, SB 63 also creates grounds on which landowners could sue for damages to their pore spaces. I used to have a whole lot of nothing. Then those durned frackers came and collapsed and compacted my nothing. Now I’ve got less nothing, and it’s good for nothing, and Judge, I want something! That legally recognized value has some North Dakota landowners suing their state over a law passed last year encouraging frackers to use carbon dioxide for enhanced oil recovery and preventing landowners from controlling such activity or seeking compensation.
Senate Agriculture and Natural Resources will get Senate Bill 63. I can’t wait to hear the committee meditating on the zen koans of pore spaces!
Related Underground Legislating: Senator Ryan Maher is also the sponsor of Senate Bill 49, which would define gravel as a mineral for the purposes of mining and compensation for damages therefrom.
Interesting bill. The question is what is property and what can be separated from one property to create another property. Society through law and legal decisions create the idea of “property” and “ownership.” Land or property ownership is not some real thing. It’s constructed. So, a person can own the land in the US, but not the wild animals on the land. Those are owned by the the public. However, a person, I think, owns other biotic resources that inhabit that land, such as plants, bacteria, etc., and the soil minerals. It can be complicated as you go down farther than soil. Of course a landowner can sell off sand and gravel, but it has been illegal to let erosion carry that sand or other soil particles into waterways, which even as they bisect the land you own, can not be in that water in such quantity that they pollute that water. It can get very complex, and it changes over time.
My daughter has studied property rights of land in China, and has been following the efforts to reform land tenure there.
Mr. Pay, might this be intended to keep the foul bad actor types from pumping back some sort of sludge or muck into the pore space under some fellow’s pasture, from whence they extracted the minerals to which they had rights?
If pore space becomes s commodity then what you store in “your pores ” best not bleed onto MY pore space.
What if it’s whiskey?
Grudz. Yes, I know that’s been a problem in North Dakota in the oil fields. It’s also, of course, an issue with coal mining, where coal actually contains pores that can hold/conduct water. It would also be an issue in in-situ uranium mining, where landowners would have to grant permission (ie. be paid) for the use of their pore space. It’s also been an issue with carbon sequestration.
How pore space would be regulated is something that needs to be addressed.
Then we may all be witness to a first, where Mr. Pay, young Mr. Maher, and grudznick are all in a line.
Erosion, runoff, spillage… if pore spaces are connected, and if my neighbor leases his pore spaces out for carbon sequestration or fracking saltwater disposal, how does my neighbor keep his turgid pores from overflowing into mine? What if my neighbor is taking fracking wastewater and I’m taking carbon, and one day my carbon depositer comes and says, “Hey! We can’t pay any more on our lease with you, because your pore spaces are all filled with salt water from next door”—I get to take my neighbor to court for improperly taking my pore space, right?
We may all be in line, but I’m not sure what we’re in line for. There’s a lot to this bill that hasn’t been discussed. I can see positives, but the details are where this gets tricky, as Cory points out.
Another issue: can you get “force pooled” in a “pore field,” if those might exists, as in oil and natural gas well fields? In that case the owner really has no right to the property, really. Oh, you might get paid a pittance, but you have no right to say “no.” Under forced pooling a minority owner in the “pool” has no ability to deviate from what the majority in the pool decide to do. So, does society agree there can be no forced pooling?
One good thing about tying pore space to the surface owner is that you can’t have fights between separate owners of separate properties. In South Dakota, that somewhat protects against non-farm corporation screwing surface property owners, unwanted damages to the surface, etc. But does it create liability issues?
Then there is the issue of regulating what is placed in the pore space, how that occurs, etc. DENR/EPA would need to be involved in regulation, which they already are in injection wells, etc.
It could get pretty complicated. It might be wise to study the issue for a year, do an environmental impact statement, figure out the legal ramifications, etc.
Everyone better get their pore space nailed down before fracking companies try dumping their extremely radioactive brine there.
Rolling Stone has a frightening article about how dangerously radioactive the brine is, especially from eastern states in the Marcellus formation. It’s a killer.
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CO Supreme Court ruled on this several years ago. We have a lot of fracking in the part of the state tourists don’t go. If you sell your mineral rights here, the pore space goes with it. You can’t sell the minerals and keep the pore space. You can’t sell the pore space without the minerals. PS – It’s the filling of the pore space with used fracking liquid that’s causing earthquakes in places earthquakes never were before.
Sounds right Porter. Thx
Where I grew up in northwestern Oklahoma, there was never an earthquake until frackers started pumping waste liquids into pore spaces under high pressure. Then there were multiple earthquakes every week. There’s also the possibility of radioactive waste disposal, a still unresolved issue. What if some absentee landowner in “the middle of nowhere” (ie western South Dakota) decides to sell or lease his pore space for disposal of pollutants of whatever kind? What if the waste pollutes aquifers, which belong to everybody and to future generations? What then? Clearly, we need to understand the implications of this bill. It appears that pore spaces require legal clarification and regulation, but if they are filled with harmful pollutants, does it matter who profits, if the public and the future lose?