New Mexico Bill Could Set Precedent For Carbon Storage In Underground Caves

04/03/2010 05:12 am ET | Updated May 25, 2011

SANTA FE, N.M. — Rancher Jack Chatfield sees untapped value in the spaces that lie beneath New Mexico's dusty landscape. But he said the state needs to first decide who owns them.

Scientists are looking at underground fissures and caverns as places where carbon dioxide emissions captured from fossil fuel power plants can be stored. Carbon emissions are among the greenhouse gases blamed for global warming. The underground space also could store compressed air as part of a process to generate clean electricity.

"This is a huge issue for our society today. It's technology that is on the cutting edge and if New Mexico blinks, we'll be left in the dust. Let's don't do that. Let's be ready," said Chatfield, who is leading an effort to settle the ownership of the underground spaces in the New Mexico Legislature.

The ownership of the spaces has become a hot topic across the West. Wyoming was the first state to tackle pore space ownership. Montana and North Dakota followed, and dozens of states – from Texas to Michigan – are considering legislation that would lay the groundwork for carbon capture and sequestration.

"Every year there's more legislation and the area of property rights has been of increasing interest," said Melisa Pollak, a research fellow at the University of Minnesota who is part of a national team studying the potential of carbon capture and storage.

New Mexico's bill is considered the first step toward establishing a carbon storage market in the state, said Mark Fesmire, director of the state Oil Conservation Division. Once ownership is established, lawmakers would then have to clear the way for the state to develop regulations.

Fesmire said he believes common law is clear: surface owners own the rights to the pore space beneath their land. The legislation is aimed at spelling that out to avoid legal challenges.

"In order to stimulate development of these projects, it's necessary to make clear to investors just exactly what they are going to be able to buy," he said.

Chatfield, whose family runs a small ranch near Mosquero, acknowledges that no one gave much thought a few years ago to who owned the empty space underground. Now that it's becoming a hot commodity, he said, landowners want to ensure their rights.

The rancher's advice: "If you see a train coming down the track, don't stay in the crossing. You need to get a move on and be proactive. That's what we're trying to do."

Wearing a big black cowboy hat, Chatfield has been spending all of his days at the New Mexico Capitol, shaking hands with lawmakers and making his presence known outside the office of Senate Republican Leader Stuart Ingle. Chatfield has vowed not to leave, saying the bill is too important to fall through the cracks of this busy 30-day session.

The issue could become contentious because pore space does not begin or end with surface property boundaries, said Abbas Ghassemi, executive director of the Institute for Energy and Environment at New Mexico State University. Voids can stretch under private property and into public land or across state lines, and there are no guidelines for long-term stewardship of sequestration sites.

"There are some serious questions that need to be answered," he said.

Some say lawmakers need to be careful that pore space rights do not interfere with mineral or water rights or the ability to recharge aquifers. Others suggest the federal government would be better equipped to regulate underground sequestration to avoid a patchwork of policies.

Storing carbon dioxide deep below the earth's surface has not yet been tested on a large scale in the United States, but researchers point to Norway's North Sea, where the world's first commercial carbon capture and storage project is sequestering about one million metric tons of carbon dioxide each year.

"In this country, we've been talking and talking and talking about this. All the technology exists at the commercial scale to do this, the problem is it's never been put together for power plants," said M. Granger Morgan, principal investigator with the CCS Regulatory Project based at Carnegie Mellon University.

Morgan agrees with the New Mexico rancher, saying options for controlling emissions – such as carbon capture and storage – will be invaluable in the future because coal is expected to remain a significant part of the country's energy mix for the next few decades.

"We make half of our electricity from coal today and the notion that somehow in the next decade we're going to completely eliminate that is just unbelievable," Morgan said. "It's going to take absolutely everything we've got – more efficient use of the energy we're already using, nuclear, wind, everything."