Law Commons^™

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

San Diego Journal of Climate & Energy Law

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS) unless the world rapidly shifts away from fossil fuels and reduces energy demand. There is significant uncertainty, however, about the level of lifecycle GHG reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice …

Fracturing The Rule Of Capture: The Improper Application Of The Rule Of Capture To Subsurface Intrusions Resulting From Hydraulic Fracturing, Alexis K. Désiré

Seattle Journal of Technology, Environmental, & Innovation Law

Imagine that during the course of hydraulically fracturing a tract of land—a process used to extract gas from low-permeability rock formations —a drilling company causes fractures, as well as some of the materials necessary to the fracturing process, to cross the boundary of its property line and enter an adjoining property—that is, it makes a subsurface intrusion onto a neighbor’s property. Assume further that, because the company’s fractures have extended into the neighbor’s property, oil and gas from the neighboring land travels to the company’s wellbore, causing the neighbor to bring a tort action against the company for harms related …

Fracking The Bakken: Interpreting The Public Trust Doctrine And State Constitutional Law To Restrict Fracking Under Beneficial Use Principles, Cormac Bloomfield

Natural Resources Journal

This Note tackles the intersection of state constitutional law, the Public Trust Doctrine, prior appropriation case law, and insufficient safeguards around fracking’s water-intensive practices. Typically operating with lax state oversight, modern day fracking depletes needed water resources from water-scarce regions while simultaneously contaminating public water resources that remain. Conservationists should, and must, turn to state constitutional law and common law public trust doctrine developments to achieve judicial intervention of a poorly regulated industry. By advancing modern understandings of beneficial use and anti-waste principles under western states’ prior appropriation systems of water ownership, courts can ensure greater protections of public water …

North Carolina's Dueling Property Rights Interests: Water And Hydraulic Fracturing, Rupa Russe

NCCU Environmental Law Review

No abstract provided.

A Big Fracking Deal: Pennsylvania's Departure From Traditional Rule Of Capture Interpretation Paves Way For Fracking Trespass Claims, Andrew Belack

Washington Journal of Environmental Law & Policy

This Comment explores the Pennsylvania Superior Court's rejection of the traditional rule of capture as it applies to oil extraction from adjacent land parcels using the hydraulic-fracturing method. At the time of writing, the Pennsylvania Superior Court's departure from the rule of capture has opened the door for trespass claims filed by an adjacent land owner, when oil under her property is extracted by a neighboring frack well. This Comment also examines the various health and environmental concerns that are consequent of the hydraulic-fracturing method of oil extraction.

The Third Age Of Oil And Gas Law, James Coleman

Indiana Law Journal

History’s biggest oil boom is happening right now, in the United States, ushering in the third age of oil and gas law. The first age of oil and gas law also began in the United States a century ago when landowners and oil companies developed the oil and gas lease. The lease made the modern oil and gas industry possible and soon spread as the model for development around the world. In the second age of oil and gas law, landowners and nations across the globe developed new legal agreements that improved upon the lease and won these resource owners …

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Washington Law Review

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of …

Fracking The Public Trust, Kevin J. Lynch

San Diego Journal of Climate & Energy Law

This Article explores the application of the public trust doctrine to fracking, specifically as it relates to regulations designed to prevent harms of continued greenhouse gas (GHG) emissions as a result of the extraction and burning of fossil fuels.

Too Little Too Late: The Infeasibility Of Osha's Silica Standards In The Oil Industry, Cali M. Franks

St. Mary's Law Journal

Abstract forthcoming

The Oil & Gas Industry: Failing To Properly Regulate Hydraulic Fracturing & Placing Profits Over Safety, Ellery Gordon

The Journal of Business, Entrepreneurship & the Law

This Note will evaluate the regulations and environmental implications surrounding hydraulic fracturing, or “fracking,” on state, federal, and Indian lands, focusing on the recent and still undecided case of Wyoming v. United States Dep’t of the Interior. Additionally, it will address the regulatory gap in federal regulations governing hydraulic fracturing, the current issues the industry faces, and advocate for a more stringent set of regulations that ought to be applied on a uniform basis throughout the United States. In the aforementioned case, Wyoming, Colorado, North Dakota, Utah, and the Ute Indian Tribe brought suit against the Bureau of Land Management …

Wyoming V. Zinke, Jaclyn Van Natta

Public Land & Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …

Regulatory Fracture Plugging: Managing Risks To Water From Shale Development, Caroline Cecot

Texas A&M Law Review

Debates about the desirability of widespread shale development have highlighted outstanding uncertainty about its health, safety, and environmental impacts—most prominently, its water-contamination risks—and the ability of current institutions to deal with these impacts. States, the primary regulators of oil and gas extraction, face pressure from the energy industry, local communities, and, in some cases, the federal government to strike the right balance between energy production and the health and safety of individuals and the environment—an elusive balance given the ongoing risk uncertainty. This dynamic is not especially unique to fracking, or even oil and gas extraction; instead, this dynamic, characterized …

Fracturing Misconceptions: A History Of Effective State Regulation, Groundwater Protection, And The Ill-Conceived Frac Act, Wes Deweese

Oklahoma Journal of Law and Technology

No abstract provided.

What’S Shakin’? Ladra V. New Dominion, Llc: A Case Of Consequence For The Hydraulic Fracturing Industry And Those Affected By Induced Seismicity, James Patrick Logan

Pace Environmental Law Review

This analysis is accompanied by a study of a 2015 ruling of the Supreme Court of Oklahoma, Ladra v. New Dominion, LLC. The case considered the possibility of a private tort action by homeowners against the operators of injection wells proceeding within the state’s judicial system, rather than simply being subject to review by a state regulatory agency. The court ultimately decided that the case would be allowed to continue within the judicial system instead of in front of a regulatory agency. This case, while not providing a “silver bullet” precedent with which future claimants can automatically win their cases …

The Death Of Opec? The Displacement Of Saudi Arabia As The World's Swing Producer And The Futility Of An Output Freeze, Christopher Hanewald

Indiana Journal of Global Legal Studies

On November 27, 2014, the Organization of Petroleum Exporting Countries met in Vienna and adopted a bold stance against increasing supply from beyond the reach of the cartel. Rather than reduce their own production, the cartel decided to allow market forces to dictate the price of a barrel of oil. By doing this, Saudi Arabia-the de-facto leader of the cartel-made a bet that the burgeoning shale gas industry within the United States would be unable to cope with a sharp fall in the price of oil. Over the course of the following two years, the U.S. energy sector-aided by further …

City Of Longmont Colorado V. Colorado Oil & Gas Association, Arie R. Mielkus

Public Land & Resources Law Review

In Colorado, the oil and gas industry's use of hydraulic fracturing, and municipalities’ attempts to restrict where the practice can be done, are at odds. Those in favor of hydraulic fracturing laud the economic benefits and natural gas’s ability to burn cleaner than coal, while those in opposition warn of potential adverse environmental impacts including the strain on water resources in the arid west. The City of Longmont was sued following its enactment of an amendment outlawing hydraulic fracturing within city limits. The City’s amendment was found to be preempted by state law, and thus could not remain in force. …

New Economics Of Oil, Spencer Dale

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada

Brooklyn Journal of International Law

China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power …

The Bureau Of Land Management's Finalized Hydraulic Fracturing Rule On Tribal Lands: A Responsibility Or Intrusion?, Kerstie B. Moran

American Indian Law Review

No abstract provided.

Wyoming V. United States Department Of Interior, Keatan J. Williams

Public Land & Resources Law Review

In a scathing opinion, the United States District Court for the District of Wyoming granted a motion for preliminary injunction, effectively blocking the BLM’s new Fracking Rule from being implemented on federal and tribal lands in the United States. The court held not only was the BLM’s new rule likely arbitrary and capricious, but the department lacked the authority to regulate fracking. The opinion relied on the Safe Drinking Water Act and the Energy Policy Act to determine that Congress explicitly removed fracking from federal regulation. Pending an appeal, the new Fracking Rule will not be implemented.

Fracking And The Rural Poor: Negative Externalities, Failing Remedies, And Federal Legislation, Matthew Castelli

Indiana Journal of Law and Social Equality

This Note examines the relationship between the rural poor and the negative externalities of hydraulic fracturing (“fracking”). It asserts that the rural poor are disproportionately burdened with fracking’s negative externalities and that comprehensive, national regulation is needed because current legal methods are insufficient to internalize these costs. The argument is made in four parts: describing fracking’s externalities; assessing their impact on the rural poor; analyzing current legal regimes; and proposing an equitable regulatory framework based on cooperative federalism.

Fracking produces three main categories of negative externalities: water, air, and land contamination. Water contamination can be caused by migration of fracking …

Comments: Hydraulic Fracturing: Evaluating Fracking Regulations, Blake Lara

University of Baltimore Journal of Land and Development

The demand for nonrenewable energy resources has increased in nations around the world despite the reality that these remaining resources are both scarce, and increasingly difficult to acquire. In 2010 Earth's reserves held the equivalent of approximately 406 billion tons of natural gas and oi1. However, at yearly consumption rates, this amount would only serve the planet's energy needs for about fifty years. The rapid elimination of conventional sources for oil and gas has led to the utilization of alternative methods to access sources that were previously not worth drilling. In the United States, for example, there are several types …

Sustainable Finance - A Blueprint For Severance Taxes In The Marcellus Shale, Ryan Pulver

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Following New Lights: Critical Legal Research Strategies As A Spark For Law Reform In Appalachia, Nicholas F. Stump

American University Journal of Gender, Social Policy & the Law

The nascent “critical legal research” movement applies the constellation of critical theory to the American legal research regime. Work in this discourse has unpacked the means through which commercial print and online legal resources (e.g., Westlaw and Lexis) insidiously channel the efforts of legal researchers, essentially predetermining research outcomes. Although legal research is commonly conceived as a normatively neutral paradigm, such commercial homogenizing agents (paired with traditional methods of legal analysis) in fact reflect and perpetuate society’s dominant interests. As grounded in the existing literature, this Article outlines novel strategies that may together constitute one potential version of a critically …

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Michigan Law Review First Impressions

The practice of hydraulic fracturing-or fracking-has become a major focus of policymakers in recent years. Federal, state, and local regulations on fracking create a confusing web for industry to navigate, and governmental entities often battle with each other for authority to regulate the practice. The fast and widespread growth of fracking in the United States has therefore exacerbated confusion over who will regulate this booming industry, and courts have so far failed to use sensible principles to resolve inconsistencies among federal, state, and local regulations. When fracking laws conflict, courts traditionally use preemption doctrine-general rules that help judges choose whether …

Conservation Easements And The Development Of New Energies: Fracking, Wind Turbines, And Solar Collection, Gerald Korngold

LSU Journal of Energy Law and Resources

No abstract provided.

Fracking Preemption Litigation, James K. Pickle

Washington and Lee Journal of Energy, Climate, and the Environment

Fracking is not a new technology, but it only recently came to the forefront of energy industry news. Fracking’s recent fame has been both positive and negative. Fracking proponents have lauded the economic and environmental benefits of the process. They cite the process’ ability to extract formerly inaccessible oil and natural gas, which reduces the U.S.’s demand for foreign oil and natural gas and reduces the use of coal. In contrast, fracking opponents state fracking damages the environment by diluting drinking water with harmful chemicals, generating emissions, and creating general nuisances for communities. They believe fracking’s harmful impacts clearly outweigh …

Insurance At The Energy-Water Nexus, Donald T. Hornstein

University of Richmond Law Review

No abstract provided.

Hupp V. Beck Energy Corp.: The Future Of Oil And Natural Gas Development In Ohio, Ben Westbrook

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Fracking Patents: The Emergence Of Patents As Information-Containment Tools In Shale Drilling, Daniel R. Cahoy, Joel Gehman, Zhen Lei

Michigan Telecommunications & Technology Law Review

The advantages of new sources of energy must be weighed against environmental, health, and safety concerns related to new production technology. The rapid development of unconventional oil and gas fields, such as the Barnett and Marcellus Shales, provide an excellent context for these contrasting goals. Information about extraction hazards is an extremely important issue. In general, patents are viewed as a positive force in this regard, providing a vehicle for disseminating information in exchange for a limited property right over an invention. However, by limiting the evaluation of an invention by third parties, patents might also be used to control …