As carbon capture and sequestration technologies gain traction, the nature of underground rights is increasingly surfacing as an important, but fractured area of law. I recently came across Professor Schremmer’s recent article, A Unifying Doctrine of Subsurface Property Rights. He provides an important extension of the doctrine of Corelative Rights as developed primarily in the both the common law of Oil and Gas Law as well as water rights. Schremmer’s article builds on his earlier works surveying the common law development of what has been called “semicommon property.” That type of commons, such as a common pool of hydrocarbons or an aquifer is marked by a common resource within a common boundary which is connected physically and subject to reduction or depletion by rivalrous exploitation by common owners/users.
Schremmer’s primary purpose is to provide a synthesis of both common law and statutory development to provide a doctrine for addressing the nature of property rights in the area within the geologic strata of the earth’s crust which can hold fluids and gas under pressure. This area is known as “Pore Space”. Schremmer demonstrates the fragmented and mixed doctrinal methods which remain after years of common law and statutory development governing the production of oil and gas and water which are present within the “Pore Space,” the subsurface property to which his doctrine applies. To provide a unifying property doctrine addressing the fragmented state of existing doctrine, Schremmer defines a “Fair Opportunity Doctrine”. This doctrine is a formalistic model intended to provide predictability while remaining flexible in the face of changing technology and societal values.
The importance of Schremmer’s analysis and jurisprudential extension of property theories in the context of “semicommon property” is of more than practical interest to practitioners of Oil and Gas law. In addition to the fast-developing interest in use of limited “Pore Space” for purposes of energy storage and carbon sequestration, the analysis demonstrates the reach and flexibility of the common law concepts of correlativity to our understanding of property. Schremmer’s work provides a useful addition to the analysis of the problems of Governing the Commons writ large. As Schremmer points out, “Many natural resources are commons or semicommons, subject to overlapping, nonexclusive claims by a limited (though possibly large) group of rights- holders and may be understood through the same unifying principle of co-equal, fair opportunity.” Today’s understanding of what may constitute a commons for purposes of governance and the role of underlying legal doctrine has only expanded in the face of shortages of water and increasing greenhouse gases.
Tom Mitchell, Wallace Stegner Fellow. Tom practiced Natural Resource and Environmental Law for most of his 40 years as a practicing attorney. He also taught Oil and Gas Law at the S.J. Quinney College of Law for 15 years. He joined the Law and Policy Program in 2021.