Crystal Gazing: Foretelling the Next Decade in Oil and Gas Law

Abstract

This chapter attempts to predict the major issues oil and gas law will encounter in the 2020s. Yet even before the first draft could be completed, the industry landscape changed unexpectedly. As this chapter goes to press, the global and domestic economies are just starting to emerge from a sharp downturn brought on by the outbreak of COVID-19. Oil and natural gas prices collapsed to levels not seen in decades. Against this unforeseen backdrop, the legal changes facing oil and gas development in the United States look somewhat different. But one element of our new reality is consistent with this chapter’s prognostications: the future of oil and gas exploration and production looks precarious.

Through the Rocky Mountain Mineral Law Foundation, the author surveyed oil and gas law professors around the country to solicit predictions about legal issues likely to predominate the next 10 years.

The predictions received, along with some of my own, are organized into six topics:

(1) pore space and injection rights and liabilities (§ 5.02);

(2) ownership rights and liabilities in produced water (§ 5.03);

(3) competing surface uses in a changing statutory and energy landscape (§ 5.04);

(4) the shifting focus of conservation law from waste and correlative rights to environmental regulation (§ 5.05);

(5) takings issues brought about by changes in property rights and conservation regulation (§ 5.06); and

(6) the effects of the COVID-19 crisis on oil and gas leases (§ 5.07).

For each topic, the chapter will describe the likely issues, synthesize their relevant precedent and scholarship, and propose an analytical framework for their resolution. In so doing, the chapter will attempt to identify themes and connect the issues to their property, contract, and tort underpinnings. So that blame may be allocated appropriately, please take note that the organization and analysis are the author's own, as are any and all errors, heresies, provocations, and risks of future inaccuracy.

Keywords: COVID-19, oil and gas, eminent domain, takings, produced water, pore space, conservation law force majeur, renewable energy