Oil, Gas, and Mineral Law Commons^™

Briggs V. Southwestern Energy Production: Hydraulic Fracturing And Subsurface Trespass, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in …

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

NCCU Environmental Law Review

No abstract provided.

Reflection On Shale Gas Fracking Risk Assessment And Management In The United States, Yosra Abid

Washington Journal of Environmental Law & Policy

Hydraulic fracturing, or fracking, is the current technology of choice for developing most shale gas reserves. This technology allows increased production of natural gas from formerly inaccessible shale formations. One of the primary environmental impacts of concern for fracking is its potential to contaminate water.

This paper focuses on the potential risks affecting the drinking-water resources throughout the complete lifecycle of a drilled and fractured well. Given the significant environmental concerns, fracking risk assessment (what we know about the risk), and fracking risk management (what we wish to do about the risk) appear to be indispensable steps for the enactment …

Rebuilding The Texas Railroad Commission, James W. Coleman

Faculty Journal Articles and Book Chapters

This article explains how the Railroad Commission of Texas became the world’s most prominent oil and gas regulator and how it can become the world’s role model again. It explains how the Railroad Commission built the world’s modern oil and gas industry by stopping oil and gas waste and ensuring stable prices. And it describes the crisis now facing the industry—overproduction of oil and gas is wasting resources that will be worth more in the future. The United States is emerging from the biggest oil and gas boom that the world has ever seen and its production now dwarfs that …

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

Faculty Articles

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are 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 …

Fracking The Public Trust, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …

Abandoned But Not Forgotten: Improperly Plugged And Orphaned Wells May Pose Serious Concerns For Shale Development, Bret Wells, Tracy Hester

Michigan Journal of Environmental & Administrative Law

This Article addresses the intersection of oil and gas law and environmental law on a topic that has profound significance for the nation’s oil industry and for the environment. In this regard, the Permian Basin is experiencing a renaissance that has fundamentally impacted oil production in the United States. Horizontal drilling and hydraulic fracturing now allow the industry to produce in the Permian Basin’s unconventional shale formations in ways that were unimaginable a decade ago. But, the hot shale plays within the Permian Basin exist above conventional fields that are littered with a century’s worth of abandoned wells. Fracturing new …

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

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, …

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 …

Defining And Closing The Hydraulic Fracturing Governance Gap, Joshua Ulan Galperin, Grace Heusner, Allison Sloto

Elisabeth Haub School of Law Faculty Publications

As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and …

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management's Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Articles

On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking.

The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal …

Managing Unconventional Oil And Gas Development As If Communities Mattered, Mark Squillace

Publications

The advent of horizontal oil and gas drilling into relatively impermeable shale rock, and the companion technological breakthrough of high-pressure, multi-stage fracking that frees hydrocarbons along the substantial length of these horizontal wells, has fundamentally altered the oil and gas industry. The Energy Information Administration has gone so far as to predict that North America could become a net energy exporter as early as 2019, largely as a result of the explosive growth of this “unconventional” oil and gas development. Despite its promise, managing unconventional oil and gas development has proved challenging, and many of the communities that find themselves …

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.

The Future Of Fracking In England: A Comparative Legal Analysis, Brian Easley

Georgia Journal of International & Comparative Law

No abstract provided.

The Superagency Solution, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

In many parts of the country, hydraulic fracturing has brought energy development onto people’s doorsteps. Efforts by local governments to employ traditional land use mechanisms to study and mitigate some of the impacts of these latest intrusions have erupted into battles over the scope of statewide agencies’ control. Forgotten in this fray are many renewable energy resources. As a general rule, they are not subject to statewide oversight, and consequently renewable energy providers must navigate the myriad of siting and permitting requirements of local jurisdictions. For several years, scholars have urged more statewide renewable energy siting procedures to level the …

Legal Tools For Local Control Of Oil And Gas Development: Successes, Challenges, And Opportunities – Focusing On Select Eastern And Western U.S. States With Current And Potential Oil/Gas Development, Gabrielle M. Ostermayer

Graduate Student Theses, Dissertations, & Professional Papers

In response to the rise in unconventional oil and gas drilling and hydraulic fracturing, coupled with concerns over local environmental, social, and health impacts, and weak state regulatory oversight, many communities have chosen to assert zoning or regulatory control over oil and gas development. However, the legal framework that enables and constrains local government powers varies by state, based on diverse statutory and constitutional language as well as the preemption of local control by state agency regulations governing industry development. Through a series of case studies, this article identifies successful, legally defensible strategies for local control of oil and gas …

Local Regulation Of Hyraulic Fracturing, Jesse J. Richardson Jr.

West Virginia Law Review

No abstract provided.

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 …

Highest Court In New York Affirms Local Power To Regulate Hydrofracking, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

In one of the most anxiously awaited New York land use decisions in recent memory, the State’s highest court held that local governments have the power to regulate hydrofracking under their authority to enact zoning ordinances. Both the Towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their borders. The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, …

Slides: The Efd Program: Addressing Environmental Issues And Increasing Environmental Awareness, Richard Haut

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Rich Haut, Houston Advanced Research Center

8 slides

Slides: The Stronger State Review Process: Draft Air Quality Guideline, Bruce Baizel

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Bruce Baizel, Chair, STRONGER Board

17 slides

Slides: Colorado Home Rule And Fracking, Richard Collins

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Richard Collins, University of Colorado Law School

33 slides

Slides: Understanding The Impacts: Issues Of Research, Cindy Beeler

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Cindy Beeler, U.S. Environmental Protection Agency, Denver, CO

10 slides

Slides: Public Health Research On Near O&G Development: Challenges And Needs, John L. Adgate

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: John L. Adgate, PhD, MSPH, Professor and Chair, Department of Environmental and Occupational Health, University of Colorado

19 slides

Slides: What We Know (And Don’T Know) About The Effects Of Oil And Gas Development On Water Quality, Joseph N. Ryan

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Prof. Joe Ryan, University of Colorado Boulder, Environmental Engineering, AirWaterGas Sustainability Research Network, www.airwatergas.org

28 slides

Slides: Industry Growth And Change, Stuart Ellsworth

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Stuart Ellsworth, P.E., Engineering Manager, Colorado Oil & Gas Conservation Commission

33 slides

Slides: Oil, Gas And Water: Addressing Water Quantity And Quality Concerns, Laura Belanger

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Laura Belanger, P.E., Water Resources Engineer, Western Resource Advocates

14 slides

Slides: Produced Water – Beneficial Reuse, Cabell Hodge

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Cabell Hodge, Policy, Regulation, and Emerging Markets Manager, Colorado Energy Office

12 slides