Pore Space Is Property: The Landowner’s Case Against Carbon Storage Forced Amalgamation

This session examines the property fight underneath the carbon capture boom: as federal tax incentives drive storage developers to assemble vast subsurface reservoirs, state amalgamation and unitization statutes increasingly allow projects to proceed over the objection of unwilling landowners — and the question of what those landowners are owed has become the next great takings battleground. Attorneys will learn the property foundation first: who owns pore space, the majority rule vesting it in the surface estate, the state statutes that have codified that ownership, and the severance and conveyancing questions that complicate every title examination; the forced amalgamation architecture — the statutes that let a storage operator bind nonconsenting owners once a consent threshold is reached, the administrative findings they require, and how they differ from the oil-and-gas unitization tradition they borrowed from; the constitutional case against compelled inclusion, including physical-occupation takings doctrine after Cedar Point and Loretto, the public-use question when the taker is a private storage developer, and the just compensation measure for a resource with no established market; and the landowner’s litigation toolkit — trespass theories for migrating CO2 plumes, inverse condemnation, and the procedural paths into state and federal court. Attendees will leave with a map of the ownership rules, a takings-claim framework adapted to compelled storage, and the landowner-side perspective this debate has so far mostly lacked.

This session moves to the federal contracting front: structuring teaming agreements and joint ventures that can withstand ostensible subcontractor and pass-through challenges. Attorneys will learn how affiliation is determined under 13 C.F.R. § 121.103 and how the SBA’s proposed 2026 size standards change that analysis, often in the middle of active procurements; the ostensible subcontractor rule and the fact patterns that convert a teaming relationship into affiliation; the structuring and drafting decisions — workshare, management, control, and mentor-protégé terms — that determine whether an agreement survives a size or eligibility protest; and how disputes actually unfold, from SBA size determinations through Office of Hearings and Appeals review. Attendees will leave with a repeatable framework for mapping affiliation risk under both current and proposed size standards and a drafting checklist for teaming and joint venture documents — taught by counsel who spent 13 years inside the federal contracting establishment and now structures these agreements in private practice.