Landowners can have ownership claims to oil, gas, water, and other tangible natural resources located in their subsoil. But can they also claim rights to the thermal energy found below their land? With 50,000 times more heat energy within the top 10,000 meters (around 33,000 feet) of the Earth’s surface than contained in all of the world’s oil and natural gas resources combined, geothermal energy is a tremendously promising, clean, and renewable energy resource. Yet, ambiguities in property rights related to the development and ownership of geothermal energy resources raise questions about who is entitled to benefit from that potential.
This Article explores questions of ownership rights and interests in geothermal energy—an incorporeal, uncontainable, natural resource that is better defined as a characteristic of underground formations rather than as a physical or tangible thing. More broadly, it looks at the effects various theoretical approaches to ownership might have on the development of geothermal energy resources.
The underlying premise of this Article is that absent clear property rules for ownership in geothermal energy, commercial and public investment in this promising, clean, renewable energy resource will remain limited. In contrast, clearly defined ownership interests could have profound implications for nearly every aspect of geothermal energy development—exploration, harvesting, conversion, and transfer of this distinct energy source—as well as for decarbonizing the economy.
* This project was a technical and intellectual challenge that could not have been achieved without a host of people whose advice, feedback, and support was absolutely invaluable. I first want to thank Jonathan Adler, Karen Bradshaw, Anna Mance, Margot Pollans, and Buzz Thompson who provided wonderful feedback and advice on an early draft of the paper at the EnviroSchmooze workshop held at Texas A&M University School of Law in August 2023. I also want to thank Keith Hirokawa who let me bend his ear on this unusual topic, and then provided his kind review and feedback on a near-final version of the manuscript. In addition, a huge thank you to Erik R. Burns, a research hydrologist with the U.S. Geological Survey, and Garry Maurath, a retired engineering geologist, both of whom gave me copious notes, suggestions, and ideas and greatly improved (and often corrected) my understanding of the science of geothermal energy. Garry, in fact, helped shape and guide much of my early research into this topic, and even reminded me that my father’s PhD dissertation focused on geothermal energy. Lastly, I want to acknowledge with great thanks Jay McKiever, Jacob Schuler, and Andrea Cooper, my research assistants who successively conducted wonderful background research over the duration it took me to gain a firm understanding of the relevant science and law. This paper is dedicated to the memory of my father, Dr. Yoram Eckstein.
The full text of this Article is available to download as a PDF.