Oil, Gas, and Mineral Law Commons^™

The Meaning Of "Other Minerals" And Other Incidents Of Mineral Ownership, Monika U. Ehrman, Colton Franks

Faculty Journal Articles and Book Chapters

Of all the contracts used in the oil and gas industry, none is as important as the oil and gas lease. It is the foundational instrument in oil and gas and a required prerequisite to development for those who do not own the mineral estate. Its uniqueness arises in that, unlike most other oil and gas contracts, it is both a contract and a conveyance of property. Part I of this article begins with an overview of the mineral estate, the predecessor to an oil and gas lease. Part II examines theories of oil and gas rights ownership and oil …

Gravitational Property Theory, Monika U. Ehrman

Faculty Journal Articles and Book Chapters

Isaac Newton and Albert Einstein defined and redefined the field of physics. Their theoretical work on gravity is still considered a monumental discovery of their respective times. Although born centuries apart, the theory of gravity each advanced is still essential. Newton’s theory is applied on Earth and even throughout much of the solar system, while Einstein’s theory is used in special environments, such as near black holes. Neither theory is discarded, but instead used where appropriate. Likewise, gravitational property theory proposes that simple property theory—the ad coelum doctrine—is still appropriate for simple property, like stationary or vertical objects. And complex …

Forced Pooling: The Unconstitutional Taking Of Private Property, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Our society’s continued addiction to fossil fuels poses an existential threat to our future. The scientific consensus clearly tells us that we must stop burning fossil fuels as fast as possible. This poses a huge political challenge, as many people make a lot of money from the fossil fuel industry, and they resist change. But an overlooked legal doctrine shows that we are not even going after the lowest hanging fruit. Oil and gas rights are often privately held in the United States. Some owners of those rights would be happy to leave their oil and gas safely in the …

U'Wa Indigenous People Vs. Columbia: Potential Applications Of The Escazu Agreement, Ariana Lippi

Sustainable Development Law & Policy

Though the case is ongoing, and results are still to be seen, it in many ways sets a precedent for indigenous communities in Latin America seeking redress for environmental and cultural injustices. With Colombia’s recent ratification of The Escazú Regional Agreement (the Agreement herein) in 2022, this case presents a unique opportunity for implementation of the Agreement and greater accountability within existing domestic legislation.

The Potential For Conflicts Between Ccs Projects And Mineral Extraction, Joseph Schremmer

Faculty Articles

This article classifies the types of conflicts likely to occur between carbon dioxide sequestration and mineral extraction operations occurring simultaneously on the same tract of land. It then sets up framework for thinking through the legal disputes that may result. These are modest goals, and the central problem—concurrent carbon dioxide sequestration and mineral development—is more complex than can be fully analyzed here. I expect that much more work will need to be done on other important questions, hopefully building on this framework. Three further questions worthy of attention are (i) how these principles guide resolutions of specific kinds of disputes, …

Toward A Utah Intentionally Created Surplus Program, Devin Stelter

Sustainable Development Law & Policy

The Colorado River Basin continues to face a now two decade-long drought sparked by the drastic effects of climate change on the region. Climate forecasting predicts that the adverse effects of climate change will only increase in severity in years to come. These effects have led federal, state, tribal, and private actors operating in the basin to search for innovative and effective solutions to the significant water scarcity problems that will persist into the future. A closely linked threat stemming from Colorado River water scarcity is the prospect of a “Compact call” on Upper Basin water by the Lower Basin …

About Sdlp, Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep

Columbia Center on Sustainable Investment Staff Publications

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.

In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that:

• Communities continue to be excluded from decision-making around investments.
• The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights.
• The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals.

CCSI and CED therefore call for:

• A …

Sabotage By Cabotage: The Jones Act’S Attack On U.S. Energy, Kyle Mason

The Journal of Business, Entrepreneurship & the Law

This article will explore the ramifications that the Jones Act has on those other crucial areas of the U.S. economy, specifically looking at the U.S. energy market and analyzing how the Jones Act’s interplay with the domestic energy transportation market has been affected. Because of the substantial burden the Jones Act places on the shipping of natural resources, the U.S. energy market has been hindered, as this law continues to adversely impact both U.S. consumers and energy industry development in general. Given the U.S.’s renewed interest in development of an independent energy market, it is time to revise or repeal …

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …

Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

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, …

Shooting Stars And Dancing Fish: A Walk To The World We Want, Tony Oposa

Environmental Law Program Publications @ Haub Law

From the foreword by Durwood Zaelke, President, Institute for Governance & Sustainable Development, Washington, DC.

“Since the beginning of time, human knowledge and culture have been passed down through stories. Short stories, songs, prayers, poems, even paintings can stick in your mind forever. These have always been the most powerful ways we learn and remember.

Tony is not only one of the world’s greatest lawyers, he is also one of the world’s greatest storytellers.

This book, in which he generously shares his experiences, his scars, and most importantly his humanity, is Tony’s gift to generations to come.

But he does …

Employment From Mining And Agricultural Investments: How Much Myth, How Much Reality?, Kaitlin Y. Cordes, Olle Östensson, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Employment creation is often seen as a key benefit of investment in natural resources. However, this benefit sometimes falls short: job estimates may be inflated, governmental policies may fail to maximize employment generation, and, in some cases, investments may lead to net livelihood losses. A more thorough examination of employment tied to mining and agricultural investments is thus useful for assessing whether and how employment from natural resource investments contributes to sustainable economic development – a particularly timely topic as countries consider how they will achieve the Sustainable Development Goals adopted in 2015.

This report aims to clarify the processes …

Recent Case Decisions, Daniel Franklin, Jordan Volino, John Curtis, Jarrod H. Gamble, Patrick J. Hoog, Taylor C. Venus

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Editor's Introduction, Daniel Franklin

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Periodic Review In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert

Columbia Center on Sustainable Investment Staff Publications

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating …

Editor's Introduction, Daniel Franklin

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

International Investment Law And The Extractive Industries Sector, Lise Johnson, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Since the 1990s, international investment law has been rapidly evolving, resulting in a complex web of over 3,000 investment treaties. These treaties have been used to challenge a wide range of host state actions and inactions that have allegedly negatively affected foreign investors or investments. Those challenges, in turn, expose host states to potentially significant financial costs, and can restrict the ability of such states to maximize the benefits, and limit the environmental and social harms, that can result from the exploitation of natural resources. This briefing note provides an introduction to international investment law, with a view to assisting …

Natural Resource Contracts As A Tool For Managing The Mining Sector, David Kienzler, Perrine Toledano, Sophie Thomashausen, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In this report commissioned by the Bundesanstalt für Geowissenschaften und Rohstoffe (BGR) on behalf of the Federal Ministry for Economic Cooperation and Development (BMZ), CCSI examined the different types of legal regimes governing mining projects in 18 countries to gain a better understanding of mining deals granted and negotiated under different minerals regimes. CCSI compared the provisions of 30 mining contracts from 13 countries, analyzed a selection of mining-related legislative texts from 18 countries, and surveyed the experiences of mining contract negotiations through dozens of interviews with experts, government officials, company representatives, and members of civil society organizations.

The report …

Breaking The Curse: A Multilayered Regulatory Approach, Hunter Dekoninck

Indiana Journal of Global Legal Studies

Eastern Africa has been plagued for generations with what Richard Auty considers 'The Resource Curse." This curse, translated into modern economic tragedies, is the exploitive extraction and use of precious minerals from Eastern Africa, specifically the Democratic Republic of the Congo (DRC). As a result of attempts to combat the international market that perpetuates this curse, Section 1502 of the Dodd-Frank Wall Street Reform Act, largely in response to human rights activism, passed into law a provision requiring companies to account to the Securities and Exchange Commission (SEC) for their use of certain listed foreign minerals. Although such regulation is …

The Durability Of Private Claims To Public Property, Bruce R. Huber

Journal Articles

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too? If there is, here is what it might look like: …

Why The Extractive Industry Should Support Mandatory Transparency: A Shared Value Approach, Julien Topal, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The Transparency Amendment, included in the Dodd‐Frank Wall Street Reform and Consumer Protection Act, can be an important tool in curtailing the resource curse that so heavily burdens resource‐rich developing countries by shedding light on opaque payments between the extractive sector and host countries. From the get‐go, however, extractive industry companies have fiercely opposed the new mandatory disclosure requirements as set out in this regulation. The corporate opposition is for the largest part motivated by the fear of a competitive disadvantage that derives from the fact that the amendment is housed with the Securities and Exchange Commission (SEC) and thus …

State Conservation As Settler Colonial Governance At Ka‘Ena Point, Hawai‘I, Bianca Isaki

Environmental and Earth Law Journal (EELJ)

This paper argues, by illustrating, that liberal multiculturalism and natural resources are interlinked strategies of settler colonial governance in political debates surrounding the construction of a “predator-proof” fence for conservation purposes across Native Hawaiian lands of deep cultural and historical significance at Ka`ena Point, a state wilderness park in Hawai`i. First, this paper shifts debates framed in terms of the seeming recalcitrance of Native Hawaiian cultural practitioners to recognize the necessity of natural resource management. Second, it considers how these political debates are repeated in the context of legal questions over the forms through which Native Hawaiian cultural claims may …

Commonwealth Edison Co. V. State Of Montana: Constitutional Limitations On State Energy Resource Taxation, Nancy K. Stalcup

Pepperdine Law Review

This note examines the case of Commonwealth Edison Co. v. State of Montana, where the United States Supreme Court analyzed and defined the permissible limitations of state energy resource taxation. While the Court adhered to the test of constitutional taxation established in Complete Auto Transit Inc. v. Brady, which strongly upheld a state's sovereign right to tax a local incident of interstate commerce, the Court failed to realize the practical ramifications of its ruling in the context o the nation's energy problems.

Ask The Experts: Mining, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

How can governments best ensure mining produces broad-based economic development?

At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.

Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.

At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.

A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for …

Foreign Investment And Indigenous Peoples: Options For Promoting Equilibrium Between Economic Development And Indigenous Rights, George K. Foster

Michigan Journal of International Law

The quotations above refer to distinct conflicts that are widely separated by time and geography but remarkably similar in other respects. The first describes events leading to the Black Hills War of 1876, in which the U.S. Army forced the Lakota Sioux and Northern Cheyenne onto reservations to make way for gold mining by non-Indians. The second describes a violent episode in a conflict between native groups and the Peruvian government, which began in 2009 when the government took steps to expand mining and oil operations by multinational enterprises (MNEs) in the Peruvian Amazon. In both cases, outside commercial interests …

The Constitutional Imperative Of Equitably Distributing The Proceeds Of Mineral Resource Extraction From China's Ethnic Minority Autonomous Areas, Lin Feng, Jason Buhi

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.