Energy Law

This white paper examines the legal and regulatory issues that arise when developing carbon capture and storage (CCS) projects, with a focus on Louisiana and comparisons to broader U.S. practices. Because CCS requires injecting carbon dioxide deep underground, operators must secure rights to use subsurface pore space—an area of law that is still evolving and differs in key ways from traditional oil and gas activity.

The paper explains why CCS developers need legal rights to pore space, touching on foundational property law concepts like ad coelum and the risk of trespass if injected CO₂ migrates beyond a project boundary. It reviews the types of agreements used to obtain pore space rights (e.g., leases, servitudes) and the compensation models associated with them. It also discusses statutory tools—such as unitization and eminent domain—that may be used when private agreements with all landowners cannot be reached.

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In 2021, President Biden signed Executive Order (EO) 14008, Tackling the Climate Crisis at Home and Abroad. While the executive order’s focus is climate change, one notable component is the Justice40 Initiative, a goal that 40 percent of the overall benefits from certain federal investments flow to disadvantaged communities. As a result, grantmaking agencies are now considering the community benefits associated with proposed projects. Because of Justice40, an understanding of EJ, and how a project might promote EJ for local communities, is critical for many federally funded projects. EJ is also important for all businesses and industries to understand as it impacts their social licenses to operate and can impact the ability to make future investments.