Indiana Landowners Assert Their Ownership of Subsurface Pore Space in New Law

INDIANAPOLIS, Indiana – Landownership rights have become a contentious issue in Indiana as the state faces the prospect of injecting carbon dioxide under private land for hydrogen production. Until recently, the ownership of pore space beneath farmland was of little concern. However, with increasing focus on reducing environmental impact and the need for carbon dioxide outlets, questions have arisen regarding who has the authority to utilize the subsurface voids.

Indiana’s General Assembly has taken swift action to address this issue, passing House Enrolled Act 1209 in the 2022 legislative session. The law, which came into effect in July 2022, grants landowners protection from companies seeking to use the space underneath their land without compensation. The Indiana Farm Bureau played a crucial role in alerting legislators to the potential crisis posed by unresolved ownership rights.

Under the new legislation, subsurface pore spaces are generally owned by the surface property owner unless those rights have been previously granted to someone else. While this law provides some protections for private property rights, not everyone has fully grasped its implications, particularly in northwest Indiana. Landowners are now encouraged to recognize that any storage or usage of their land’s subsurface requires negotiation and consent.

Indiana is one of the few states that have addressed the issue of pore space ownership and liability. Other states, such as Montana, Wyoming, Oklahoma, California, Kansas, Texas, and Illinois, have also implemented laws to clarify landowner rights in relation to pore spaces. Legal expert Brianna Schroeder predicts that more states will follow suit and enact legislation on this matter.

In recent years, the issue has even reached the state supreme courts. For instance, in North Dakota, a law aimed at preventing compensation for pore space usage was struck down by the state’s supreme court, affirming landowners’ right to profit from carbon dioxide storage. Pennsylvania has likewise affirmed surface owners’ ownership of pore spaces, due in part to the interest in establishing hydrogen hubs in the state.

It is clear that Indiana’s proactive approach in addressing subsurface pore ownership issues sets a precedent for other states grappling with similar challenges. The law, House Enrolled Act 1209, serves to safeguard landowners’ rights and requires negotiation and consent for any usage of their pore spaces. Landowners are urged to familiarize themselves with their rights and exercise due diligence in protecting their interests.