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American Law and Jurisprudence on Fracking
12/01/2010
Thomas E. Kurth, Michael J. Mazzone, Mary Simmons Mendoza, Christopher S. Kulander

The substantial growth of domestic unconventional shale resources in recent years has partially been a result of the increase in the use of hydraulic fracturing. Hydraulic fracturing is generally viewed as a completion technique that is a practical necessity to promote development of unconventional “tight” shale reservoirs, particularly gas-shale. Hydraulic fracturing entails treating water, oil, or gas wells to stimulate more production than otherwise would have been achieved using standard drilling and production techniques. This report deals with hydraulic fracturing and the legal and technical issues associated with it.

This report first covers what hydraulic fracturing is and why it is done. It identifies the current location of the largest shale gas fields where hydraulic fracturing is common and the effect of hydraulic fracturing on domestic production. It then covers the environmental issues, focusing on the anecdotal and evidentiary call and response among environmental groups, regulators, landowners, and producers. It then discusses how traditional oil and gas jurisprudence impacts hydraulic fracturing, emphasizing both surface versus mineral estate issues and disputes that arise between two adjoining mineral owners.

We examine the regulatory frameworks currently in place in thirteen (13) states where hydraulic fracturing is common. This state-level analysis is made with an eye towards regulations specific to hydraulic fractioning and the fluids used, as well as more overarching regulations that include hydraulic fracturing among other exploration and production activities, such as general pollution disposal regulations that cover used hydraulic fracturing fluid as well as other liquid waste from drilling. In several instances, this report describes bills under consideration, as well as important opinions from state courts. We also consider hydraulic fracturing on semi-sovereign tribal land.

Finally, this report analyzes the current and contemplated laws and regulations governing hydraulic fracturing on the federal level. In particular, it discusses the history of the litigation and legislative efforts challenging the current federal exception enjoyed by hydraulic fracturing. It also highlights the friction between state and federal oversight.

This paper was originally published by the Rocky Mountain Mineral Law Foundation in the Rocky Mountain Mineral Law Foundation Journal, Vol. 47, No. 2 (2010). To read the full paper click on the PDF linked below.