Horizontal Drilling, Vertical Problems: Property Law Challenges from the Marcellus Shale Boom

37 Pages Posted: 13 Jan 2017  

Joshua P. Fershee

West Virginia University - College of Law

S. Alex Shay

U.S. Department of Justice

Date Written: January 10, 2017

Abstract

This article focuses on key property challenges appearing as part of the West Virginia Marcellus Shale play. The paper opens with an introduction to the Marcellus Shale region that is the focus of our analysis. The paper explains the horizontal drilling and hydraulic fracturing process that is an essential part of shale oil and gas development. To help readers understand the property challenges related to shale development, we include an introduction to the concept of severed estates, which can create separate ownership of the surface estate and the mineral estate. The article then focuses on two keys issues. First, the article discusses whether horizontal drilling and hydraulic fracturing constitute a “reasonably necessary” use of surface land to develop mineral rights, and concludes they are, at least in most instances. Second, the article discusses difficulties in analyzing deed language related to minerals rights and royalty interests, which has created challenges for mineral owners, leasing companies, and oil and gas developers. Please note that although the publication date is 2015, the article was not in print until January 2017 and discusses cases from 2016.

Ultimately, the article concludes, legislators and regulators may choose to add surface owner protections and impose other measures to lessen the burden on impacted regions to ease the conflict between surface owners and mineral developers. Such efforts may, at times, be necessary to ensure continued economic development in shale regions. Communities, landowners, interest groups, companies, and governments would be well served to work together to seek balance and compromise in development-heavy regions. Although courts are well-equipped to handle individual cases, large-scale policy is better developed at the community level (state and local) than through the adversarial system.

Keywords: shale, oil, natural gas, fracking, hydraulic fracturing, horizontal drilling, energy law, regulation, West Virginia, Marcellus, Utica, property

JEL Classification: Q4, Q40, Q41, Q48, Q13, Q21, Q28, Q3, Q31, Q31, Q33, Q38

Suggested Citation

Fershee, Joshua P. and Shay, S. Alex, Horizontal Drilling, Vertical Problems: Property Law Challenges from the Marcellus Shale Boom (January 10, 2017). John Marshall Law Review, Vol. 49, No. 2, 2015. Available at SSRN: https://ssrn.com/abstract=2896879

Joshua Paul Fershee (Contact Author)

West Virginia University - College of Law ( email )

Box 6130
Morgantown, WV West Virginia 26506
United States
304-293-2868 (Phone)

HOME PAGE: http://law.wvu.edu/faculty/full_time_faculty/joshua-p-fershee

Steven Alexander Shay

U.S. Department of Justice ( email )

United States

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