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Abstract

There is a growing literature examining when subsurface invasions from activities like tunneling, horizontal drilling, hydraulic fracturing, and waste disposal will constitute actionable subsurface trespasses. Liability for subsurface trespass has become an important question for many reasons, including that a significant climate-change technology, carbon dioxide sequestration, hinges on the ability to inject massive quantities of carbon dioxide underneath the land of many owners. To date, the subsurface trespass scholarship has paid relatively little attention to two topics downstream of liability: private remedies for trespassing subsurface activities.

This Article provides a high level accountof the role of, and relationship between, private remedies and public regulation in a formal system of subsurface property rights. It aims to provide a foundation and framework for future in-depth scholarhsip on remedies and regulation for subsurface trespass. While important, the topics of remedies and regulation are logically posterior to liability. They can be adequately addressed only after developing a principled understanding of when and why subsurface invasions ought to be actionable. Accordingly, this Article derives its principles for applying private remedies and developing public regulation from the “fair opportunity” theory of subsurface property rights developed in earlier work.

Building on the fair opportunity theory, this Article first lays the groundwork for a formal interpretation of private law remedies, to suide courts in analyzing claims for injunctive relief, measuring compensatory damages, and assessing punitive damages. The Article then explores the relationship between private remedies and public regulation of subsurface activites. Drawing on the fair opportunity theory and recent scholarship on the limits of police power regulation of property rights, the Article sketches a framework for comprehensive statutory regulation of subsurface resource development. Finally, the Article illustrates how these principles explain and justify oil and gas conservation regulation and outlines a model for regulating use of subsurface storage space or, “pore space,” for carbon dioxide sequestration.

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