Pore space rights — the right to use subsurface formation space for CO2 sequestration or other storage — are legally distinct from mineral rights. State-by-state framework for IL, IN, KY, ND, WY.
Get Your Free Mineral ValuationTL;DR Pore space rights — the legal right to use subsurface void space for CO2 sequestration or other storage — are distinct from mineral rights, which cover extraction. State law varies significantly: North Dakota, Wyoming, and Indiana statute vest pore space in the surface owner; Texas case law generally treats it as part of the mineral estate; Illinois, Kentucky, and Louisiana frameworks treat it as part of the surface estate. CCS leases are typically signed with the pore space owner.
Pore space refers to the void space within subsurface rock formations — the microscopic interstitial spaces between mineral grains and within fractures. These spaces can hold fluids, gases, or other substances. Pore space rights are the legal rights to use that void space, distinct from rights to extract minerals from it.
Pore space has historically been a minor legal concept because there was little commercial use for empty subsurface space. The rise of carbon capture and sequestration (CCS) has changed this — sequestered CO2 must be stored somewhere, and that "somewhere" is pore space, often in deep saline aquifers below producing zones.
Mineral rights and pore space rights cover the same physical formations but address different uses:
Mineral rights — the right to extract oil, gas, and other minerals FROM the formation
Pore space rights — the right to put substances INTO the formation, occupying the void space
For most of U.S. legal history, mineral rights were dominant and pore space ownership was undefined. As CCS has become a multi-billion-dollar industry, states have begun enacting statutes that explicitly allocate pore space ownership.
Pore space ownership varies significantly across states:
North Dakota — vests pore space ownership in the surface owner by statute (NDCC §47-31).
Wyoming — vests pore space in the surface owner by statute (Wyo. Stat. §34-1-152).
Indiana — vests pore space in the surface owner by statute (relevant to Wabash Valley CCS hub).
Illinois — has CCS-specific statutes for select projects; general framework treats pore space as part of the surface estate by court decision.
Kentucky — case law treats pore space as part of the surface estate; statutory framework still developing.
Texas — case law (Mapco v. Carter, Lightning Oil Co. v. Anadarko) generally treats pore space as part of the mineral estate, but with significant complications.
Louisiana — Civil Code framework distinct from common-law states; pore space treated as part of the surface estate.
For mineral owners and surface owners on CCS-eligible acreage:
If you own minerals only (not surface), you generally do not own pore space in IL, IN, KY, ND, or WY.
If you own surface only (severed-mineral situation), you may own pore space in those states even though you have no minerals.
CCS leases are typically signed with the pore-space owner — usually the surface owner — not the mineral owner.
Mineral owner consent may still be required to ensure CCS does not interfere with future mineral development.
This is a complex legal area in active development. Owners considering any CCS-related document should
Buckhead Energy buys mineral interests across the Illinois Basin and other CCS-active regions.
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