As we have written before, the owner of the surface estate in Pennsylvania likely owns the pore space that remains after subsurface minerals are extracted. sale of an estate in fee simple until all the available minerals are removed”). ![]() In either event, it is the grant of an estate determinable upon the removal of the coal”) Snyder Brothers, Inc. This right is sometimes limited in point of time in others it is without limit. 1893) (“Practically considered, the grant of the coal is the grant of a right to remove it. In general, it seems that if the surface has been severed from subsurface rights in Pennsylvania, the owners of subsurface rights own the oil, gas, coal or mineral molecules but not the subterranean pore space where those oil, gas, coal or mineral molecules are located. Because these estates are severable, different owners may hold title to separate and distinct estates in the same land.” Hetrick v. The foundation of the inquiry rests on the fact that “Pennsylvania law recognizes three discrete estates in land: the surface estate, the mineral estate, and the right to subjacent (surface) support. The contours of the legal issues that may be faced in Pennsylvania are not set, but will likely revolve around pore space ownership, the accommodation doctrine, and the developer’s intent in the project. Injecting carbon dioxide to stimulate shale formations and to dispose of that carbon dioxide poses interesting questions about subsurface ownership that will almost certainly arise in Pennsylvania. ![]() If carbon dioxide is used to stimulate shale gas production instead of hydraulic fracturing, then the carbon dioxide remains in the subterranean pore space instead of water. Injecting carbon dioxide to extract natural gas from shale gas formations has also been studied and shown theoretical promise, though it has not been used on a wide scale. The value of carbon dioxide in enhanced oil recovery operations is its ability to mix with oil in the formation and its pore spaces, pressurizing and moving the oil so that it can flow to the surface. Oil and gas drillers have used carbon dioxide injections as part of “ enhanced oil recovery” operations for years. Injecting carbon dioxide into the ground as part of oil and gas development is nothing new. Southern Tier also proposes that “he carbon dioxide used in the drilling and completion process, in addition to the carbon dioxide periodically injected for reservoir pressure management, will enhance natural gas production and become, over time, trapped in the pore space or absorbed into the shale matrix.” Southern Tier suggests that its lease would pay property owners for oil and gas production royalties and for carbon sequestration. ![]() Now, Southern Tier CO2>Clean Energy Solutions (“Southern Tier”), proposes to secure lease rights that would allegedly generate both production royalty payments and carbon sequestration payments.Īccording to its website, Southern Tier “intend to directionally drill horizontal wells and produce natural gas from the Marcellus and Utica shales using carbon dioxide as a replacement for water in the well drilling and stimulation process.” By using carbon dioxide instead of water, Southern Tier offers a way to get around New York’s prohibition on hydraulic fracturing. Despite this, New York has not seen shale gas development of any real scale because hydraulic fracturing techniques have not been allowed. The Marcellus formation gets its name from outcroppings in Marcellus, New York. Does this herald a new type of development that Pennsylvania landowners could expect to see or is it just an attempt to skirt New York’s prohibition on hydraulic fracturing? A company in New York is attempting to secure leases to allow it to produce oil and gas and to use the leased land for a carbon dioxide injection program for long-term storage.
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