Mineral Estate Conservation Easements: A New Policy Instrument to Address Hydraulic Fracturing and Resource Extraction

10 Pages Posted: 3 Feb 2017

See all articles by Robert B. Jackson

Robert B. Jackson

Duke University

Jessica Owley

University at Buffalo Law School; Universidad Pontificia Comillas (ICADE)

James E. Salzman

University of California, Santa Barbara (UCSB) - Donald Bren School of Environmental Science & Management; University of California, Los Angeles (UCLA) - School of Law

Date Written: February 2, 2017

Abstract

In a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions. Individuals and communities have turned to the law to restrict oil and natural gas production with mixed success. While little explored, there is also potential for private efforts to restrict fracking.

We propose a novel tool, the Mineral Estate Conservation Easement (MECE), to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability. The article assesses whether a MECE is compatible with current state conservation easement acts, whether it would qualify for a tax deduction, and legislative actions that would strengthen the status of MECEs.

Overall, we find that MECEs hold great potential as a private land use tool to restrict hydraulic fracturing in specific settings. While its legal status is well supported in most jurisdictions, in others uncertainty remains, though this could easily be remedied in most cases with minor statutory or regulatory amendments.

Keywords: Mineral Estate Conservation Easement (MECE), Hydraulic Fracturing, Energy Policy and Regulation, Private Land Use, Land Use Regulations

Suggested Citation

Jackson, Robert B. and Owley, Jessica and Salzman, James E., Mineral Estate Conservation Easements: A New Policy Instrument to Address Hydraulic Fracturing and Resource Extraction (February 2, 2017). 47 Environmental Law Reporter 10112 (2017); UCLA School of Law, Public Law Research Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2910618

Robert B. Jackson

Duke University ( email )

100 Fuqua Drive
Durham, NC 27708-0204
United States

Jessica Owley

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-8182 (Phone)
716-645-2064 (Fax)

Universidad Pontificia Comillas (ICADE) ( email )

Alberto Aguilera 23
Madrid, Madrid 28015
Spain

James E. Salzman (Contact Author)

University of California, Santa Barbara (UCSB) - Donald Bren School of Environmental Science & Management ( email )

4670 Physical Sciences North
Santa Barbara, CA 93106-5131
United States

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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