Legislators in Ohio seek to establish a regulatory framework for the long-term, geologic storage of carbon dioxide in order to provide the clarity needed to attract developers to the state. But, HB170 and SB136 go far beyond this simple goal. If passed, these two bills would significantly erode landowner rights in Ohio and expose Ohio taxpayers and the communities that would be host to these storage projects to significant risk.
Background
CO2 storage involves injecting and storing CO2 deep underground for hundreds or thousands of years. This CO2 is stored below impermeable caprock in empty pockets known as pore space. Proponents claim that this process will help reduce emissions in a variety of industrial processes, including power generation and the production of hydrogen from natural gas. Regional proposals like the Appalachian hydrogen hub and the Tri-State CCS Hub both require massive amounts of CO2 storage capacity.
Many states have established regulatory frameworks to help court carbon storage developers. These frameworks typically address:
- the relationship between rights to pore space, surface rights, and mineral interests, i.e. oil, gas, and coal
- ownership of pore space (the underground voids and cavities targeted for CO2 injection) and whether the rights to pore space can be leased, or sold
- the state permitting process for injection wells
- and the creation of storage funds to support regulatory activities, including permitting and long-term maintenance.
However, the legislative proposals in Ohio go much further than establishing these basic frameworks.
Statutory Consolidation
HB170 and SB136 would allow companies to dump CO2 underneath homes and private property without the owner’s approval. This practice, referred to in the bills as “statutory consolidation,” is intended to help companies aggregate different areas of pore space into a single project to streamline development. Concerningly, the Ohio proposal allows these storage projects to proceed without support from all pore space owners impacted by the proposal, meaning that some people will be forced into these projects and will have CO2 dumped under their property and homes without their permission.
To put this in practical terms, let’s say that a developer is developing a storage project involving 1,000 acres and they secure leases from two owners (A and B, depicted in yellow) whose pore space amounts to 700 acres. The developer can then petition the state to grant them access to the pore space owned by the remaining 300 acres (owners C through L, depicted in red) without their approval, even though they represent a numerical majority — in other words, the rights of ten owners that collectively own 300 acres are trumped by two owners who collectively own 700 acres of pore space.
The bill does require developers to attempt to notify all pore space owners included in a proposal but the fact that these storage projects can proceed under people’s homes and property without their consent or awareness is very worrying. This provision is a serious threat to the rights of surface owners and it would be made worse if Ohio allows CO2 storage under large tracts of state-owned land, as has been happening in West Virginia. Because the threshold for project development is determined by acreage, not the actual number of consenting owners, small landowners would be especially at risk if these measures are approved.
In 2020, the rupture of a CO2 pipeline hospitalized 45 residents in Satartia, MS and forced 200 others to evacuate from their homes. Ohio communities forced to live near CO2 storage projects could be at risk of similar incidents, including pipeline ruptures and well-head blowouts. Allowing companies to trample on local rights in this way eliminates the most important protection for communities concerned about these projects: the ability to opt out.
Long-term liability
This legislation would also allow operators of CO2 storage projects to push almost all of their post-site closure liability onto the state, leaving the public on the hook for the ongoing maintenance and monitoring of these projects. Ohio is already facing nearly a billion dollars in abandoned mine land reclamation costs and tens of thousands of abandoned oil and gas wells. Assuming responsibility for large CO2 storage projects only adds to these immense legacy issues from the state’s industrial past. The long-term responsibility for projects as complex and dynamic as CO2 storage projects should stay with the companies that built and operated them.
Letting companies off the hook for these obligations invites them to cut corners in construction, record-keeping, and operations. If someone else is responsible for any problems that arise in the future, companies have less of an incentive to ensure the integrity of their projects.
Not all states with carbon storage regulations allow for the transfer of liability or forced unitization. By including these two provisions, state legislators are going out of their way to reward private companies at the expense of everyday Ohioans. The priorities of the legislators advancing these bills are made even clearer when considering the protections the bills provide to the oil and gas industry.
Protections for industry, not communities
While HB170 and SB136 are similar in many respects to legislation passed in neighboring West Virginia and Pennsylvania, these bills differ in one very important way: the degree to which the Ohio proposals protect fossil fuel development from CO2 storage projects, protections not provided to any other stakeholder group.
One example of this is a provision allowing subsurface owners concerned about impacts to mineral rights to object to the statutory consolidation of pore space. In contrast, pore space owners are unable to opt out of these storage projects if enough owners grant their approval, even if those consenting landowners represent a numerical minority. Additionally, a surface landowner that no longer owns or controls the rights to the pore space underneath their property would have no say in whether CO2 stored beneath their home or land.
The bill also requires pore space projects to be isolated from any existing or future oil and gas production and calls for setbacks establishing buffer areas to protect oil and gas interests from CO2 storage projects. No such protection is afforded to environmental justice communities, schools, churches, parks, or other sensitive areas.
Worse, the bills also grant the state “sole and exclusive authority” over CO2 storage projects, preempting any protective steps local communities may choose to take to ensure their safety as these projects move forward in the state.
In other words, this legislation disenfranchises other stakeholders, including people who object to CO2 storage under their properties and homes, and exposes the public to novel safety risks — all while protecting and empowering the oil and gas industry.
The backers of these two legislative proposals may present these bills as mere clarifications of the regulatory environment but, if passed, these bills could place local communities in harm’s way and impact property owners, especially small ones.