Zoning the Subsurface

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal wells, geothermal electricity generation facilities, and cultural artifacts, among other uses. There is growing consensus for the need to define and clarify an underground property rights system, but a larger issue looms—the question of a coordinated property rights regime for the vast subsurface. Most scholarship and legislation have focused on evolving common law property rights and discrete permitting regimes for the subsurface. This Article proposes a different legal pathway, arguing for large-scale, national-regional planning of subsurface land uses. This approach would guide and coordinate emerging common law and permitting regimes for the subsurface. Current and proposed approaches to subterranean property will inadequately govern subsurface property for reasons of utility, equity and justice, and participatory governance. The emerging common law and legislative regimes for the subsurface are piecemeal and non-comprehensive, presenting high transaction costs, governance costs, inadequate deliberative avenues for stakeholders, and inefficient and inequitable outcomes for subsurface uses. As the United States begins to fill a massive, hidden physical space with new substances, a better governance regime of adequate scale and scope is critical.