REPORT TO CONGRESS

FRAMEWORK FOR GEOLOGICAL CARBON 

SEQUESTRATION ON PUBLIC LAND

In Compliance with Section 714 of the Energy Independence 

and Security Act of 2007 (P.L. 110-140, H.R.6)

Submitted to the Committee on Natural Resources of the House of Representatives and the 

Committee on Energy and Natural Resources of the Senate

Prepared by the U.S. Department of the Interior (DOI) in Consultation with the Department of Energy 

(DOE) and the Environmental Protection Agency (EPA) and U.S. Geological Survey (USGS)
Table of Contents

Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Section 714(b) (1): Recommended Criteria for Identifying Sites. . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Geological Criteria

1. General Criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Formation-Specific Criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Other Criteria

1. Effects of Impurities on Storage Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. Geographical Distribution and Storage Capacity Estimates on the Public Lands. . . . 6

3. Federal Lands and Land Use Planning Implications . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Section 714(b) (2): Proposed Regulatory Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Existing Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Open Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Section 714(b) (3): Public Review and Resource Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Section 714(b) (4): Liability Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Section 714(b) (5): Recommendations for Additional Leasing Legislation. . . . . . . . . . . . . . . . . 11

Section 714(b) (6): Split Estate Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Section 714(b) (7) (A): Pipeline Rights-of-Way Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 714(b) (7) (B): Recommendations for Additional Rights-of-Way Legislation. . . . . . . . 12

Section 714(d): Compliance With Safe Drinking Water Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Energy Independence and Security Act of 2007

SEC. 714. FRAMEWORK FOR GEOLOGICAL CARBON SEQUESTRATION

ON PUBLIC LAND.

(a) REPORT.—Not later than 1 year after the date of enactment

of this Act, the Secretary of the Interior shall submit to the Committee

on Natural Resources of the House of Representatives and

the Committee on Energy and Natural Resources of the Senate

a report on a recommended framework for managing geological

carbon sequestration activities on public land.

(b) CONTENTS.—The report required by subsection (a) shall

include the following:

(1) Recommended criteria for identifying candidate

geological sequestration sites in each of the following types

of geological settings:

(A) Operating oil and gas fields.

(B) Depleted oil and gas fields.

(C) Unmineable coal seams.

(D) Deep saline formations.

(E) Deep geological systems that may be used as engineered

reservoirs to extract economical quantities of heat

from geothermal resources of low permeability or porosity.

(F) Deep geological systems containing basalt formations.

(G) Coalbeds being used for methane recovery.

(2) A proposed regulatory framework for the leasing of

public land or an interest in public land for the long-term

geological sequestration of carbon dioxide, which includes an

assessment of options to ensure that the United States receives

fair market value for the use of public land or an interest

in public land for geological sequestration.

(3) A proposed procedure for ensuring that any geological

carbon sequestration activities on public land—

(A) provide for public review and comment from all

interested persons; and

(B) protect the quality of natural and cultural resources

of the public land overlaying a geological sequestration

site.

(4) A description of the status of Federal leasehold or

Federal mineral estate liability issues related to the geological

subsurface trespass of or caused by carbon dioxide stored in

public land, including any relevant experience from enhanced

oil recovery using carbon dioxide on public land.

(5) Recommendations for additional legislation that may

be required to ensure that public land management and leasing
laws are adequate to accommodate the long-term geological

sequestration of carbon dioxide.

(6) An identification of the legal and regulatory issues

specific to carbon dioxide sequestration on land in cases in

which title to mineral resources is held by the United States

but title to the surface estate is not held by the United States.

(7)(A) An identification of the issues specific to the issuance

of pipeline rights-of-way on public land under the Mineral

Leasing Act (30 U.S.C. 181 et seq.) or the Federal Land Policy

and Management Act of 1976 (43 U.S.C. 1701 et seq.) for

natural or anthropogenic carbon dioxide.

(B) Recommendations for additional legislation that may

be required to clarify the appropriate framework for issuing

rights-of-way for carbon dioxide pipelines on public land.

(c) CONSULTATION WITH OTHER AGENCIES.—In preparing the

report under this section, the Secretary of the Interior shall coordinate

with—

(1) the Administrator of the Environmental Protection

Agency;

(2) the Secretary of Energy; and

(3) the heads of other appropriate agencies.

(d) COMPLIANCE WITH SAFE DRINKING WATER ACT.—The Secretary

shall ensure that all recommendations developed under this

section are in compliance with all Federal environmental laws,

including the Safe Drinking Water Act (42 U.S.C. 300f et seq.)

and regulations under that Act.
1

Executive Summary

Geological carbon sequestration has been discussed as one potential approach to reducing 

greenhouse gases in our atmosphere. Sequestration of carbon in geological formations on public 

lands presents many challenges, and it is essential that those challenges be recognized in 

developing a regulatory framework. 

First, a proposed regulatory framework must recognize carbon dioxide (CO2) as a commodity, 

resource, contaminant, waste, or pollutant. Unlike most other resources that are managed, CO2 is

a material that is either being stored for disposal or is extracted for use. CO2 is currently leased 

under the Mineral Leasing Act (MLA) for uses such as refrigeration (in its solid form as dry ice), 

fire extinguishers, and carbonation of water and soft drinks. CO2 also is used to enhance oil 

recovery which to some extent results in its sequestration. It is also important to recognize that 

any discussion addressing the geologic sequestration of ―carbon dioxide‖ must distinguish 

between pure CO2 and CO2 mixed with other gases such as hydrogen sulfide, carbon monoxide, 

methane, and oxides of nitrogen and sulfur. These impurities have the potential to impact the 

economics, technical feasibility, location preferences, land use planning requirements, 

environmental impact mitigation, multiple-resource conflict potential, and regulatory oversight 

of geologic CO2 sequestration. Impurities in CO2 impact its value as a commodity, as well as its 

behavior in storage.

Second, carbon sequestration may potentially conflict with other land uses including existing and 

future mines, oil and gas fields, coal resources, geothermal fields, and drinking water sources. 

For example, sequestration in a formation would limit all future possibility of extracting minerals 

from the formation without some risk of venting the captured CO2. Carbon sequestration could 

also have potential impacts on other surface land uses and programs such as recreation, grazing, 

cultural resource protection, and community growth and development. These impacts need to be 

addressed.

Third, a proposed statutory and regulatory framework must recognize the long-term liability of 

any permitting decision to sequester CO2 and the required commitment for stewardship of 

facilities over an extended period of time. The scope of liability and term of stewardship will be 

among the longest ever attempted, lasting up to thousands of years or more. This may prove to 

be a potential limiting factor for siting, transportation, processing, and storage on Federal lands 

given the Bureau of Land Management’s (BLM) multiple-use mission for long-term 

management of the public lands. 

Many existing Federal statutes and regulations potentially apply to some aspect of the 

management of geologic sequestration of CO2. These include management of other resources, 

waste disposal, groundwater protection, and human health and safety. However, due in part to 

the many unique challenges discussed above, gaps may exist in the current laws and limit our 

ability to address the range of circumstances, scope of potential liability, required timeframe of 

stewardship, and regulatory primacy differences between the states and Federal Government. 
2

It must be recognized that effective risk management of any geologic sequestration 

decisionmaking and regulation of consequent activity is limited by the current state-of-the-art of 

scientific assessment, monitoring, measurement, verification, and mitigation of any potential 

undesirable consequences occurring on or beneath the surface of the land. Additional investment 

in ongoing scientific and engineering research will be essential as geological sequestration is a 

rather new option to reduce greenhouse gas emissions. 

While a number of challenges will need to be evaluated, we do have information that can inform 

such future discussions. For example, we have the results of research at sites at which large 

quantities of CO2 have been injected for as many as 12 years and have operated safely and shown

no signs of CO2 leakage.

Lastly, geological carbon sequestration on split estate lands or lands where the surface is 

managed by other Federal agencies presents other complications due to ownership issues of pore 

space and limitations that may need to be placed on surface and subsurface uses to ensure 

integrity of storage.

The main body of this report displays the requirements of the Act as stated in section 714(b) and 

(d) in italic font followed by the agencies’ recommendations, identifications, and descriptions in 

regular font.

Section 714(b):

(1) Recommended criteria for identifying candidate geological sequestration sites in each of the 

following types of geological settings:

(A) Operating oil and gas fields.

(B) Depleted oil and gas fields.

(C) Unmineable coal seams.

(D) Deep saline formations.

(E) Deep geological systems that may be used as engineered reservoirs to extract 

economical quantities of heat from geothermal resources of low permeability or porosity.

(F) Deep geological systems containing basalt formations.

(G) Coalbeds being used for methane recovery.
3

A. Geological Criteria

1. General Criteria

All prospective injection formations share common characteristics that could be used potentially 

as criteria for identifying candidate geological sequestration sites. 

Injection zone: The injection zone is a layer or layers of porous rocks that is sufficiently porous 

to receive the CO2 without fracturing and extensive enough to receive the anticipated total 

volumes of injected CO2. Sufficient scientific data, such as geologic core data, outcrop data, 

seismic survey data, cross sections, well logs, and other data should exist to demonstrate the 

lateral extent and thickness, strength, capacity, porosity, and permeability of the subsurface 

formations. Structural features of a potential injection zone reservoir, such as the lateral extent, 

dip, or the presence of ―pinch-outs‖ (i.e., thinning or tapering out), can affect storage potential 

and, therefore, should be examined. 

Seal or cap: The injection zone should be overlain by a low-permeability confining system (or 

primary confining zone) consisting of a geological formation, part of a formation, or group of 

formations that prevents the injected fluid from migrating upwards out of the injection zone. The 

buoyancy of CO2 necessitates good characterization of potential conduits for fluid migration 

upward through the confining system. The confining system should be of sufficient regional 

thickness and lateral extent to contain the entire CO2 plume and associated pressure front under 

the confining system following the plume’s maximum lateral expansion. 

Geologic structure: The local geologic structure, including the presence of any faults and 

fractures that transect the confining zone, should be of a nature to not interfere with long-term 

containment of the CO2. These types of features, if present, could potentially become conduits 

for movement of CO2 or other fluids to shallower layers, depending on site-specific 

characteristics of fault stability and rock stress, ductility, and strength. 

Seismic stability: The seismic history of the area must be understood and the risk of future 

earthquakes should not create the potential for disruptive fault movement and fracture dilation

that may cause loss of seal integrity and subsequent leakage of the CO2.

Induced seismicity: Underground injection wells, if improperly sited and operated, have the 

potential to induce seismicity, which may cause damage to reservoir and fault seals, creating 

conduits for fluid movement as well as other damage that earthquakes cause. The confining zone 

should be of sufficient integrity to sustain maximum injection pressures without deleterious 

effects. Geomechanical studies of fault stability, fracture systems, rock stresses and strength, 

based on examination and interpretation of geological maps and cross sections, seismic and well 

surveys, determination of local stress fields, and modeling, can also help exclude sites with 

unacceptably high potential for seismic activity (IPCC, 2005). 
4

Geochemistry: The geochemistry of formation fluids can also affect whether a site is suitable for 

geologic sequestration. The CO2 may act as a solvent and can mix with native fluids to form 

carbonic acid; carbonic acid can react with minerals in the formation. Dissolution of minerals 

may liberate heavy metals into the formation fluids. Reactions may also break down the rock 

matrix or precipitate minerals and plug pore spaces, thereby reducing permeability (IPCC, 2005). 

Underlying science base: The site must be sufficiently accessible to allow collection of the 

necessary data to determine site suitability and monitoring should sequestration occur. For 

example, a parcel of suitable Federal land surrounded by extensive inaccessible land (public or 

private) may prevent the characterization of the full extent of the expected CO2 injection plume. 

Capacity: The site must have sufficient capacity to accept the volume of CO2 expected for the 

life of the sequestration project. In November 2008, the Department of Energy (DOE), in 

conjunction with other Federal and state agencies, produced the second edition of the "National 

Carbon Sequestration Atlas" which estimated capacity for CO2 sequestration in all regions of the

Nation and Western Canada. In addition, the U.S. Geological Survey (USGS) is developing an 

enhanced assessment methodology for use in future assessments in accordance with Section 711 

of the Energy Independence and Security Act of 2007 (EISA). The regional assessments provide 

context for site specific estimates based on geological information from the target sequestration 

area.

2. Formation-Specific Criteria

Operating oil and gas fields: Use of pure CO2 to enhance the recovery of hydrocarbons on 

Federal leases is a well-established practice and is currently regulated under BLM and EPA 

authority. To the extent that injected CO2 is stranded and not produced with the recovered 

hydrocarbons, it may be possible to permanently sequester CO2 in the producing geologic 

horizon. Criteria are currently undefined for determining which oil and gas fields are suitable for 

sequestration, but all producing oil and gas fields are potentially suitable.

Depleted oil and gas fields: Depleted oil and gas fields are all potentially suitable for CO2

sequestration. Criteria for depleted field acceptance should include, first, the extent to which 

abandoned wells may be plugged or demonstrated to be secure and, second, the lack of known 

leaks from the reservoir from sources such as reactivated faults, production-related subsidence, 

and seal damage from water-flood or hydraulic fracturing. 

Unminable coal seams: Criteria to determine ―unminability‖ have yet to be developed but would 

be based on economic and other factors. While it is certainly definable at the present using 

current economic factors, projection into the future for the centuries to millennia scale of carbon 

sequestration reservoirs is currently not determined.

Deep saline formations: The general geologic criteria above apply as well as the non-geologic 

criteria below.
5

Deep geological systems that may be used as engineered reservoirs to extract economical 

quantities of heat from geothermal resources of low permeability or porosity: The general 

geologic criteria require an injection formation of suitable porosity and permeability. By

definition, low permeability or porosity geothermal systems are not suitable for sequestration of 

large volumes of CO2.

Deep geological systems containing basalt formations: The general geologic criteria above apply 

as well as the non-geologic criteria below. Large volume flood basalts, however, can have 

unique characteristics of wide areal extent and many repeated porous layers. This raises the 

possibility of stacked reservoirs and potentially makes the demonstration of a suitable seal more 

critical and possibly more difficult. Planned tests are expected to significantly increase the 

knowledge base in these formations. 

Coalbeds being used for methane recovery: The general geologic criteria above apply as well as 

the non-geologic criteria below. The permeability criterion is potentially affected by fractures or 

cleats and by coal rank (degree of alteration or maturity). Coal also has characteristics which 

may negatively affect injectivity over time and positively affect immobilization of the CO2. The 

future minability of the target coal seam is of critical importance as injection of CO2 for both 

enhanced recovery of coalbed methane and CO2 storage potentially degrades the economic value 

of coal. Future mining of coal used for sequestration similarly lowers or eliminates the value of 

the sequestration. The likely future of a coal seam is, therefore, a key determinant of its 

suitability for storage. Conflicts between mining, coalbed methane production, and CO2 storage 

are possible, particularly for shallow coals.

B. Other Criteria 

1. Effects of Impurities on Storage Capacity

Under the proposed Environmental Protection Agency (EPA) rules for Underground Injection 

Control (UIC) for CO2 sequestration, impurities in amounts that exceed regulatory limits under 

other authorities are not allowed to be sequestered. Accordingly, only trace impurities will be in 

injected CO2 streams and the effect on storage capacity will be minimal. 

However, contaminants such as hydrogen sulfide are routinely co-injected with CO2 in enhanced 

oil recovery operations. The EPA also issues Class 1 injection permits for contaminants such as 

hydrogen sulfide. Thus, it is possible that impurities in more than trace amounts may be injected 

on public lands in association with geologic sequestration. The presence of impurities in the CO2

gas stream affects the engineering processes of capture, transport, and injection as well as the 

trapping mechanisms and capacity for CO2 storage. Some contaminants in the CO2 stream may 

require classification as hazardous, imposing different requirements for injection and storage

than if the stream were pure. Gas impurities in the CO2 stream affect the compressibility of the 
6

injected CO2 and reduce the capacity for storage because of the storage space taken by these 

gases. In addition, depending on the type of geological storage, the presence of impurities may 

cause reduction or enhancement of permeability or mobilization of otherwise immobile of heavy 

metals or other materials.

In the case of CO2 storage in coal seams, impurities may also have a positive or negative effect, 

similar to enhanced oil recovery (EOR) operations. If a stream of gas containing hydrogen 

sulfide or sulfur dioxide is injected into coal beds, these components will likely be preferentially 

adsorbed because both have a higher affinity to coal than CO2, thus reducing the storage capacity 

for CO2. If oxygen is present, it will react irreversibly with the coal, reducing the sorption 

surface and, hence, the adsorption capacity. On the other hand, some impure CO2 waste streams, 

such as coal-fired flue gas, may be used for enhanced coalbed methane recovery because the CO2

is stripped out or retained by the coal reservoir due to the fact it has higher sorption selectivity 

than diatomic nitrogen and methane.

From a public lands perspective, the type and quantity of impurities in the transported, 

processed, and sequestrated CO2 may have implications for multiple use, public health and 

safety, and environmental impacts, as well as other resource uses. Gaseous impurities include, 

but are not limited to, nitrogen, water vapor, oxygen, sulfur dioxide, nitrogen dioxide, carbon 

monoxide, and hydrogen sulfide. This may add an additional dimension to land use planning 

decisions and National Environmental Policy Act (NEPA). 

2. Geographical Distribution and Storage Capacity Estimates on the Public Lands

The geographical distribution of carbon sequestration capacity on public lands is important for 

the efficient matching of CO2 sources with economic sequestration formations. The second 

edition of the DOE Carbon Sequestration Atlas of the United States and Canada tabulated and 

mapped the major stationary sources of CO2 and estimated the potential CO2 capacity within 

prospective geologic formations. It also estimated that about 5.5 percent of the onshore U.S. 

CO2 storage capacity is beneath potentially leasable Federal lands.

In addition, the USGS is developing methodology to assess probable CO2 storage capacity as 

outlined in Section 711 of the EISA. Upon completion of the new USGS assessment

methodology, it will be possible to distinguish between the capacity that could be identified as 

usable with present-day technology and conditions and the remaining much larger, but less wellcharacterized, in-place resource as estimated in the DOE’s Atlas. Use of the new methodology 

will allow refinement of the estimates presented in the Atlas as well as incorporation of 

uncertainty in capacity estimates. Having refined estimates will assist policy and decisonmakers

in the future as they address mitigation strategies for CO2 emissions and the role of public lands 

in those policy decisions.
7

3. Federal Lands and Land Use Planning Implications 

Criteria for geologic sequestration recognizing the multiple uses of Federal lands include

potential interference with other uses and resources, as well as future uses and resources yet 

unknown or yet to be discovered, long land use planning cycles, a strong technical basis to 

support decisionmaking, and historical uses of the land. 

Potential resource interferences include existing and future mines, oil and gas fields, coal 

resources, geothermal fields, and drinking water sources. The criteria and processes for 

determining the most appropriate land use are contained in existing land management statutes 

and regulations and can be logically extended to include the additional use of geologic 

sequestration. The land may be withdrawn for other uses such as military or other Federal 

priorities. At the present time, it is assumed that sequestration will not take place on lands 

otherwise reserved. Federal land and resource use planning typically involves long time cycles 

and may involve extensive environmental reviews under NEPA. Again, the current statutory 

authority may be used to perform the required reviews, including stakeholder participation. For 

informed land use planning to take place, prospective sequestration sites must have a sufficiently 

developed technical basis and understanding of their geologic characteristics. The criteria above 

can be used to develop the information needed for adequate planning.

It is anticipated that Reasonable Foreseeable Development Scenarios (RFDS), analogous to those 

currently developed for oil and gas, will be used to project long-term activities related to 

geologic sequestration on the public lands. Such scenarios assume that all potentially suitable 

areas will be open under standard terms and conditions except those that are closed by law, 

regulation, or Executive Order. RFDS used as supporting information for planning decisions are 

a critical part of the NEPA analysis under the various alternatives associated with land use plan 

development and are published as a stand-alone report. However, the in-house technical data 

and expertise to perform these projections for geologic sequestration is currently quite limited

and may require that special attention be paid to ensuring adequate organizational resources and 

investment into further research.

(2) A proposed regulatory framework for the leasing of public land or an interest in public land 

for the long-term geological sequestration of carbon dioxide, which includes an assessment of 

options to ensure that the United States receives fair market value for the use of public land or 

an interest in public land for geological sequestration.

Currently, there is no specific statutory authority for leasing public land or an interest in public 

land for the long-term sequestration of CO2. However, there are several existing authorities that 

could be used under various circumstances to authorize CO2 sequestration activities. 

Determination of the authority available to approve a project depends on the particular 

circumstances of that project, including ownership of the surface and mineral estates. However, 

these existing authorities, and their implementing regulations, provide flexibility and opportunity 
8

to receive fair market value for the use of public land or an interest in public land for geological 

CO2 sequestration. In addition, there is existing authority and regulation for managing pipelines, 

roads, and other infrastructure. These existing authorities are not likely to address all the unique 

issues that carbon sequestration presents, and specific statutory authority may be preferred.

A. Existing authorities available for regulating and managing long-term geological sequestration

Cooperative or unit plan of development: The Mineral Leasing Act (MLA) allows for lessees to 

join together and collectively operate under a cooperative or unit plan of development where it is 

determined by the Secretary of the Interior to be necessary or advisable in the public interest.1 

There are unit plans of development in operation today that utilize the injection of CO2 into the 

producing formation for the enhanced recovery of the oil resource (EOR). Such EOR unit plans 

of development are a form of geological carbon sequestration, as the oil producing formation is 

flooded with CO2 to transport the oil to the surface. That CO2, injected into the producing 

formation and remaining behind, is sequestered. Such units could be modified in their terms and 

operation to more effectively sequester CO2 as the oil recovery operations wind down; that is, 

continue to inject CO2 after the oil resource is essentially fully produced until the formation is at 

or just below its original pressure. Such operations could continue under the authority of the 

MLA up to the point that hydrocarbons are no longer being produced.

When considering the conversion of EOR projects into sequestration efforts, it is worth noting 

that well integrity requirements for CO2 sequestration purposes may be much more rigorous than 

current requirements for oil and gas wells. Existing plugged, abandoned, and orphaned wells 

within a proposed geologic sequestration area would require reevaluation for integrity and, if 

necessary, remediated and/or re-plugged to meet the more rigorous requirements. Conversion 

also would require an entity to take responsibility for the sequestration phase – potentially 

outside the expertise or interest of extractive industries.

Gas storage agreement: The MLA also allows the Secretary to approve the subsurface storage of 

gas, whether or not the gas is produced on federally owned lands or whether or not the lands are 

leased, in order to promote conservation of resources.

2

 Such gas storage agreements are used 

 

1

30 U.S.C. 226(m) “Cooperative or unit plan; authority of Secretary of the Interior to alter or modify; 

communitization or drilling agreements; term of lease, conditions; Secretary to approve operating, drilling or 

development contracts, and subsurface storage...

“For the purpose of more properly conserving the natural resources of any oil or gas pool, field, or like 

area, or any part thereof...lessees thereof and their representatives may unite with each other...in collectively 

adopting and operating under a cooperative or unit plan of development or operation of such pool, field, or like 

area, or any part thereof, whenever determined and certified by the Secretary of the Interior to be necessary or 

advisable in the public interest...”

2

30 U.S.C. 226(m) “Cooperative or unit plan; authority of Secretary of the Interior to alter or modify; 

communitization or drilling agreements; term of lease, conditions; Secretary to approve operating, drilling or 

development contracts, and subsurface storage...
9

today for the temporary storage of produced natural gas in order to balance production rates and 

address delivery issues. However, the broad language of the MLA could allow for the use of gas 

storage agreements to authorize long-term geological sequestration in order to promote 

conservation of resources.

It is important to note that some existing and potential underground gas storage facilities may not 

be viable for CO2 sequestration use over the required long timeframes currently envisioned for 

geological sequestration.

2920 authorizations: The Federal Land Policy and Management Act (FLPMA) authorizes the 

Secretary of the Interior to issue leases, permits, and easements for the use, occupancy, and 

development of the public lands.3 The regulations implementing this authority are at 43 CFR 

2920. The statute and regulations are sufficiently broad to allow for a variety of authorizations 

related to geologic sequestration and related activities while sufficiently flexible in form and 

terms to accommodate many different actions and activities, including surface and subsurface 

rights-of-way and leases for subsurface storage. Such land use authorizations may be issued for 

any use not specifically authorized under other laws or regulations and not specifically forbidden 

by law, including uses that cannot be authorized as rights-of-way under Title V of the FLPMA or 

Section 28 of the MLA.

B. Open issues

Liability: Liability under the authorities cited above is a complicating factor in the development 

of CO2 sequestration projects. Liability is also an issue that is directly connected to the issue of 

the ownership of the subsurface pore space. 

Liability, as an issue, is further complicated by the length of time contemplated for long-term 

geologic sequestration. For how many years are any agreements, leases, permits, or rights-ofway granted and maintained? What amount and type of bonding or other financial 

considerations are incorporated into the authorization and their regulation, and for what period of 

time?

 

“...The Secretary of the Interior, to avoid waste or to promote conservation of natural resources, may 

authorize the subsurface storage of oil or gas, whether or not produced from federally owned lands, in lands 

leased or subject to lease under this chapter....”

3

43 U.S.C. 1732(b) “Easements, permits, etc., for utilization through habitation, cultivation, and development of 

small trade or manufacturing concerns; applicable statutory requirements...

“In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under 

such terms and conditions as are consistent with such law, regulate, through easements, permits, leases, licenses, 

published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development 

of the public lands....”
10

Where CO2 sequestration is authorized on Federal lands by lease, permit, or right-of-way, who 

has ownership of the CO2 and the liability at the end of the term of that lease, permit, or right-ofway? Will the Federal Government assume ownership of the CO2 and, therefore, any future 

liability?

Who is liable for any potential migration or leakage of CO2 and the impacts to subsurface and 

surface resources during the course of any lease, permit, or right-of-way and after its expiration? 

Will the Federal Government be indemnified for any damage to subsurface and surface resources 

after the expiration of the lease, permit, or right-of-way?

What surface or subsurface uses would need to be limited to ensure proper storage? How would 

unauthorized uses that have the potential to disturb proper storage be addressed? It is possible 

that sequestration sites would be ―exclusive use‖ areas depending on liability issues that may be 

presented.

(3) A proposed procedure for ensuring that any geological carbon sequestration activities on 

public land--

(A) provide for public review and comment from all interested persons; and

(B) protect the quality of natural and cultural resources of the public land overlaying a 

geological sequestration site.

The BLM’s Resource Management Plans (RMP) form the basis for every action and approved 

use on the public lands, including 258 million acres of surface lands and 700 million acres of 

mineral estate. Land use planning emphasizes a collaborative environment in which local, state, 

and tribal governments, the public, user groups, and industry work with the BLM to identify 

appropriate multiple uses of the public lands.

Where sequestration activities are proposed, plan amendments will be needed to identify the 

suitability of public lands within the planning area, analyze environmental impacts as a part of 

the NEPA process, protect or mitigate damage to other surface or subsurface resources whether

natural or cultural, and provide for public review and comment. The existing planning process 

can be used to engage the various publics when contemplating CO2 sequestration activities.

(4) A description of the status of Federal leasehold or Federal mineral estate liability issues 

related to the geological subsurface trespass of or caused by carbon dioxide stored in public 

land, including any relevant experience from enhanced oil recovery using carbon dioxide on 

public land.

It is unclear as to how liability will be determined and mediated. The question of liability will 

potentially involve the impacts, both surface and subsurface, on other resource estate, takings, 

geophysical trespass, use trespass, access, damages or degradation, economic loss, prior rights, 
11

and eminent domain reconciliation. In establishing any leasing arrangements, the long time 

horizons involved in geologic sequestration of carbon may require further analysis of appropriate 

risk and cost sharing mechanisms. Sequestration sites will require design and monitoring so as 

to accommodate stable and safe storage for thousands of years. Liability is further complicated 

by the fact that sequestered CO2 may contain contaminants such as hydrogen sulfide, oxides of 

sulfur and nitrogen, carbon monoxide, mercury, and others, and sequestration activities may 

liberate contaminants from the reservoirs at depth.

On split estate lands or lands where the surface is managed by another agency, ownership or 

administrative responsibility of the pore space where the carbon would be stored greatly 

complicates liability and property issues. In addition, impacts to other mineral interests need to 

be evaluated as the long-term nature of sequestration could foreclose future options for 

extraction and using future technologies.

Use of EOR in areas of historic production must be done carefully. A full inventory of existing 

boreholes must be conducted; any such existing boreholes must be evaluated for their ability to 

hold the pressures associated with EOR and reengineered as necessary. Failure of such existing 

infrastructure could lead to a significant release of CO2, possibly posing a hazard to human 

health and safety and causing other environmental impacts. There is also potential for intrusion 

of CO2 or other fluids into any freshwater aquifers that may be present. Again, in both of these 

instances, careful evaluation and remediation of existing boreholes and locating and plugging 

any abandoned or orphaned wells should prevent such problems.

(5) Recommendations for additional legislation that may be required to ensure that public land 

management and leasing laws are adequate to accommodate the long-term geological 

sequestration of carbon dioxide.

As noted at the beginning of this report, while the long-term nature of the stewardship

commitments for these facilities, particularly the monitoring, verification, and remediation of

sites presents challenges, current public land management and leasing laws may be adequate to

authorize sequestration projects. For example, under FLPMA, the BLM has the authority to

issue long-term leases. Legislative recommendations will follow under separate cover.

(6) An identification of the legal and regulatory issues specific to carbon dioxide sequestration 

on land in cases in which title to mineral resources is held by the United States but title to the 

surface estate is not held by the United States.

Where ownership of the surface and mineral estates is split, ownership of the pore space is an 

issue that determines which statutory and regulatory authorities can be used to authorize geologic 

sequestration activities. 
12

Precedent established by court rulings has given rise to the American rule which holds that 

subsurface pore space is the property of the surface owner. However, some court cases appear to 

support the mineral estate owner as the owner of the subsurface pore space. Various state 

governments are considering action to establish the American rule as state law; Wyoming 

already has done so. The Interior Board of Land Appeals has also adopted the American rule in 

several cases. The procedures that could be followed are outlined below for split estate 

situations where only the minerals are federally owned, or where only the surface is federally

owned.

1. Where the mineral estate is Federal but not the surface, CO2 injection for the purpose of 

enhanced oil and/or natural gas recovery will be managed under the status quo procedures 

established under the MLA, as amended, usually under the aegis of unitization for secondary 

recovery. However, once enhanced recovery operations cease, any continued injection of CO2 

for sequestration purposes would no longer be a Federal undertaking if the American rule is 

followed. The BLM or other surface management agencies may participate in the EPA’s

permitting process for conversion of the injection wells from Class II to the newly proposed 

Class VI under the Safe Drinking Water Act’s UIC program. Wells drilled solely for the purpose 

of sequestration would only be subject to Federal regulation under the EPA’s UIC program if the 

American rule is applied. The operator would be liable to the Federal Government for any 

damages to its mineral estate caused by injection activities.

2. Where the surface is federally owned but the mineral estate is not, surface operations and 

drilling of CO2 injection wells for either enhanced recovery or sequestration could be authorized 

through a lease or permit under the Section 302(b) of the FLPMA. The BLM or other surface 

management agency is authorized to charge rentals for the use of the surface for injection wells 

and other facilities and, if the American rule is applied, fees for the storage of the CO2. The same 

issues would present complications as discussed above.

(7)(A) An identification of the issues specific to the issuance of pipeline rights-of-way on public

land under the Mineral Leasing Act (30 U.S.C. 181 et seq.) or the Federal Land Policy and 

Management Act of 1976 (43 U.S.C. 1701 et seq.) for natural or anthropogenic carbon dioxide.

The BLM does not anticipate any issues related to the issuance of pipeline rights-of-way under 

the MLA or the FLPMA for natural or anthropogenic CO2. Existing policy and guidance are

adequate to address rights-of-way issuance under either Act.

(B) Recommendations for additional legislation that may be required to clarify the appropriate 

framework for issuing rights-of-way for carbon dioxide pipelines on public land.

The BLM does not anticipate that any additional legislation is required.
13

Section 714(d):

Compliance With Safe Drinking Water Act- The Secretary shall ensure that all recommendations 

developed under this section are in compliance with all Federal environmental laws, including 

the Safe Drinking Water Act (42 U.S.C. 300f et seq.) and regulations under that Act.

The BLM anticipates that all sequestration activities on public lands will be subject to regulation 

under the UIC program implemented by the EPA or state agencies that have received primary 

enforcement authority or primacy from EPA under the program. The proposed regulations 

published by the EPA on July 25, 2008, when finalized, would create a new Class VI well 

category under the existing UIC program with new Federal requirements to allow for permitting 

of the injection of CO2 for the purpose of geological carbon sequestration. Primacy states would 

adopt these minimum requirements or could impose more stringent state standards than the 

Federal regulations in order to gain or retain primacy approval from EPA for their Class VI well 

program. The BLM as a land manager would fully cooperate with the EPA or state UIC 

permitting process and with the EPA or state monitoring and enforcement activities.

Conclusions:

Geologic sequestration of CO2 appears to be technically feasible on the lands administered by the 

BLM given their location, extent, geologic character, and prior mineral resource use, e.g., oil and 

gas development and production. Further, management of geologic carbon sequestration appears

to be administratively feasible within the BLM’s multiple-use mandate. 

However, essential questions and unknowns remain for regulatory and public policy resolution:

1. How will CO2 be classified, with its many-faceted nature: a waste, a resource, an engineering 

tool for hydrocarbon recovery, a threat to human health and safety, and a source of potential 

impact to the quality of the human and natural environments?

2. How will geologic carbon sequestration be managed under split estate or multiple-resource 

ownership and what governs ownership and associated liability issues?

3. Where resource development or conservation conflicts emerge, what is the relative priority of 

geologic carbon sequestration?

4. How will liability be assigned and managed over the requisite time scales? What role will the 

BLM play in assigning liability or assuming liability and at what point in time?

5. How will land use plans and associated NEPA documents be modified or amended in a timely 

manner to accommodate geologic carbon sequestration? Note: It has taken over 10 years to 
14

update most of the current RMPs in the Western U.S. to accommodate increased energy 

development. 

6. What special technical workforce capabilities will be required by Federal agencies involved 

in the authorization of sequestration activities on public lands?

7. What types of other multiple uses are compatible with long-term storage of CO2 and the 

potential liability it presents? Will these lands become single use? 

8. Finally, the decision to geologically sequester CO2 and associated impurities represents a 

potential irreversible commitment of public land resources in a given area for timeframes beyond 

the BLM’s experience.

Recommendations:

1. Regulatory:

A. While gaps are likely to exist as we work, to the maximum extent practicable, Federal 

agencies should within current authorities, be able to address many of the issues that arise.

B. Retain enough regulatory flexibility to be responsive to unique site and project characteristics 

while allowing for adaptive management by the Federal agencies involved. Amend 

regulations on an as-needed basis as experience is gained in managing carbon sequestration 

activities on the public lands.

2. Policy:

A. Reconcile Federal and state agency procedures for granting rights-of-way related to pipeline 

and other infrastructure for CO2 transmission, processing, and storage; reconcile agency 

views on whether proposed sequestration projects would address near- or long-term geologic 

sequestration needs; improve coordination among agencies that administer contiguous tracts 

of land when responding to applications for a right-of-way across their respective 

jurisdictions; and improve coordination among agencies regarding the appropriate 

geographic locations of energy transmission corridors or rights-of-way on Federal lands and 

the potential to include the transmission of CO2.

B. Continue to invest in ongoing research to better characterize sequestration reservoirs and

develop an understanding of the long-term behavior of CO2 and other greenhouse gases in 

the subsurface; this will better inform future regulatory and rulemaking actions.

C. Continue to invest in research to develop improved monitoring, modeling, measurement, 

inspection and verification technology, techniques, protocols, and procedures specific to 

geologic carbon sequestration.
15

D. Continue to invest in research to develop remediation techniques to be applied upon 

detection of storage facility seal failure.

E. Continue to invest in research to develop an increased understanding of the environmental 

effects of geologic carbon sequestration and impact on other resources, including the 

subsurface biosphere.

F. Assess and analyze the future technical workforce needs and capabilities of Federal land 

management agencies in the areas of pre-injection geological and environmental assessment, 

regulatory approval, monitoring, measurement and verification, abandonment approval, and 

post-abandonment stewardship. 
16

References:

1. Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).

2. Mineral Leasing Act (30 U.S.C. 181 et seq.).

3. Leases, Permits and Easements. Title 43 Code of Federal Regulations, Pt. 2920.

4. Interstate Oil and Gas Compact Commission, U.S. Department of Energy - National Energy 

Technology Laboratory. (2008). CO2 Storage: A Legal and Regulatory Guide for States.

5. Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon 

Dioxide (CO2) Geologic Sequestration (GS) Wells; Proposed Rule. 73 Federal Register 144 (25

July 2008), 43492 - 43541.

6. U.S. Department of Energy, National Energy Technology Laboratory (NETL). (2008). 

Carbon Sequestration Atlas II of the United States and Canada. Washington, DC.

7. Wilson, Elizabeth J. & Figueiredo de, Mark A. (2006). Geologic Carbon Dioxide 

Sequestration: An Analysis of Subsurface Property Law. Environmental Law Reporter (ELR) 

News & Analysis. 36 ELR 10114. 2-2006. 10114-10124.

8. Williams and Meyers. (2006). Oil and Gas Law, Vol.1, #222 (Matthew Bender, 2006) for 

identification of property interests related to storage of natural gas in geologic reservoirs.

9. Intergovernmental Panel on Climate Change (IPCC) Working Group III of the 

Intergovernmental Panel on Climate Change (Metz, B.,O., Davidson, H. de Coninck, M. Loos, 

and L. Meyer (Eds.)). (2005). 2005 Special Report on Carbon Dioxide Capture and Storage. 

New York: Cambridge University Press.

10. Wilson, Elizabeth J. et al. (2008). Regulating Geologic Carbon Sequestration.

Environmental Science and Technology (2008).

11. Moore, Jeffrey W. (2007). The Potential Law of On-shore Geologic Sequestration of CO2

Captured from Fired Power Plants. 28 Energy L.J. 443, 444.

12. Figueiredo de, Mark Anthony. (2007). The Liability of Carbon Dioxide Storage (MIT Ph.D. 

Thesis, Feb 2007).

13. Damen, Kay et al. (2006). Health, Safety and Environmental Risks of Underground CO2

Storage—Overview of Mechanisms and Current Knowledge. 74 Climatic Change 297.

14. Benson, Sally M. et al. (2002). Lessons Learned from Natural and Industrial Analogues for 

Storage of Carbon Dioxide in Deep Geological Formations. Earth Sciences Division, E.O. 

Lawrence Berkeley National Laboratory, Berkeley, 135.
17

15. Wilson, Elizabeth J. & Gerard, David (Eds). (2007). Geologic Sequestration Under Current 

U. S. Regulations, in Carbon Capture and Sequestration: Integrating Technology, Monitoring, 

Regulations. 169-93.

16. Figueiredo de, Mark A. (2007). Property Interest and Liability of Geologic Carbon Dioxide 

Storage, in Carbon Capture and Sequestration, Integrating Technology, Monitoring and 

Regulation 243. Elizabeth J. Wilson & David Gerard (Eds.).

17. U.S. Department of Energy et al. (2007). Programmatic Environmental Impact Statement 

Designation of Energy Corridors on Federal Land in 11 Western States (DOE/EIS-0386) Draft. 

November 2007. Volume I-III. Washington, DC.

18. Herzog, Howard, Drake, Elizabeth, & Adams, Eric. (1997). CO2 Capture, Reuse, and 

Storage Technologies for Mitigating Global Climate Change. A White Paper, final Report. 

DOE Order No. DE-AF22-96PC01257. Cambridge, MA: MIT Energy Laboratory. 

19. U.S. Department of Energy, National Energy Technology Laboratory (NETL). (2007). 

Carbon Sequestration Program Environmental Reference document. DE-AT26-04NT42070. 

Washington, DC.

20. Benson, Sally M., & Meyer, Larry. (2002) Monitoring to Ensure Safe and Effective 

Geologic Sequestration of Carbon Dioxide. IPCC Workshop on Carbon Dioxide Storage, 

Regina, Canada.

21. U.S. Environmental Protection Agency. (2008). Vulnerability Evaluation Framework for 

Geologic Sequestration of Carbon Dioxide. Washington, DC, EPA 430-R-08-009. 

22. U.S. Congressional Research Service Report: ―Regulation of Carbon Dioxide (CO2) 

Sequestration Pipelines: Jurisdictional Issues (Updated April 15, 2008) by Adam Vann and Paul 

W. W. Parfomak.

23. U.S. Congressional Research Service Report: ―Carbon Dioxide (CO2) Pipelines for Carbon 

Sequestration: Emerging Policy Issues‖ (Updated January 17, 2008) by Paul W. Parfomak and 

Peter Folger.

24. S. Taku Ide, S. Julio Friedann, and Howard J. Herzog. (2005) CO2 Leakage Through 

Existing Wells: Current Technology and Regulations. Unpublished Report. Laboratory for 

Energy and the Environment, MIT. Cambridge MA.

25. New Mexico Energy, Minerals, Natural Resources Department, Oil Conservation Division. 

(2007) A Blueprint for the Regulation of Geologic Sequestration of Carbon Dioxide in New 

Mexico. 
18

Bibliography of Some Case Law and References on Property Rights Issues Potentially Related to 

Underground Space Used for Geologic Storage of Carbon Dioxide.

Cases:

1. Cent. Ky Natural Gas Co. v. Smallwood, 252 S. W. 2d 866, 868 (Ky. Ct. App. 1952).

2. Chance v. BP Chemicals, Inc., 670 N.E 2d 985 (Ohio 1996).

3. Dept of Trans v. Goike, 560 N.W. 2d 365, 366 (Mich. Ct. App. 1996).

4. Ellis v. Ark. La. Gas Co., 609 F. 2d 436, 439 (10th Cir. 1979).

5. Emeny v. United States, 412 F. 2d 1319 (Ct. Cl. 1969).

6. Humble Oil & Refining co. v. West, 508 S.W. 2d 812 (Tex. 1974).

7. Mapco, Inc. v. Carter, 808 S.W. 2d 262 (Tex. App.—Beaumont 1991), rev’d in part, 817 

S.W. 2d 686 (Tex. 1991).

8. Mission Res., Inc. v. Garza Energy Trust, 166 s. W. 3d. 301, 310 (Tex. App.—Corpus 

Christi 2005, review granted.

9. Mongrue v. Monsanto Co., 249 F. 422, 433 n. 17 (5th Cir. 2001).

10. R.R. Comm of Tex. v. Manziel, 361 S.W. 2d 560, 568 (Tex. 1962).

11. Tate v. United Fuel Gas Co., 71 S.E. 2d 65, 72 (W Va. 1952).

12. Tex. Am. Energy Corp. v. Citizens Fid. Bank & Trust Co., 736 S.w. 2d 25, 28 (Ky. 1987).

13. United States v. 43.42 Acres of Land, 520 F .Supp. 1042, 1045 (W.D. La. 1981).