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Abstract

Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public ownership. It argues that geothermal energy’s fugacious, nonexcludable, and variably renewable nature makes conventional place-based private ownership difficult to justify or administer. The Article therefore advances two distinct models: (1) a regulated ownership-upon-capture regime, borrowed from oil and gas law, that treats geothermal heat as unowned until extracted; and (2) a public-ownership model that vests the resource in the relevant state or federal government while enabling secure, transferable use rights. Either approach, if paired with streamlined but robust regulation and clear access rules, could reduce legal uncertainty, protect land rights, attract capital, and support sustainable geothermal expansion nationwide and long-term energy security.

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