Carbon Capture Pooling Statutes After North Dakota Rulings: Lessons For Regulators And Developers

State litigation over carbon capture and storage (CCS) is testing a core element in many existing statutory CCS frameworks: whether a legislature may allow nonconsenting landowners to be forced to provide their pore space for an operator’s CCS facility through “amalgamation” procedures (sometimes referred to as “unitization” or “pooling”) similar to mechanisms used for the extraction of oil and gas interests. Two recent North Dakota decisions struck down the application of amalgamation to CCS, holding that forced unitization of pore space is a taking, and that the state’s CCS statutes did not provide for “just compensation” under North Dakota’s state constitution. This Advisory summarizes those rulings and the pending appeals, and assesses how similar reasoning may impact existing CCS statutes, using Louisiana and Indiana as illustrative examples, as well as the regulatory process currently underway in California to address unitization. Drawing on learnings from these North Dakota