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Fracking Legal Landscape Updated in Haynes and Boone White Paper
08/23/2011
Christopher S. Kulander, Thomas E. Kurth, Michael J. Mazzone, Mary Simmons Mendoza, Elizabeth E. Klingensmith

HOUSTON – Haynes and Boone, LLP energy attorneys have published an update to their comprehensive and highly regarded “American Law and Jurisprudence on Fracking,” a white paper that examines the legal, environmental and regulatory climate in active shale play states.

The revised version of the original piece, which was published by the prestigious Rocky Mountain Mineral Law Foundation Journal (Vol. 47, No. 2; 2010) and the June 2010 issue of the Texas Bar Association's Oil, Gas and Energy Resources Law Journal, is more than 75 pages long and contains more than 550 cites.

“We know of no other firm that has produced such an exhaustive survey of the issues faced by those involved in the rapidly expanding hydrofracking industry,” said Houston Partner  head of the Haynes and Boone Energy Practice Group. “We’re happy to make this work available to all interested parties free of charge, and we trust that it will serve as a vital tool for legal counsel nationwide.”

The updated report is available at the Haynes and Boone website at this URL: www.haynesboone.com/fracking_2011.

Its findings are scheduled to be discussed during the Law of Shale Plays Conference in Fort Worth Sept. 7 - 8 by firm Of Counsel Christopher S. Kulander, who is currently teaching oil and gas and property law at the Texas Tech University School of Law.

Within its pages, the update covers environmental issues inside the major shale play locations, focusing on the anecdotal and evidentiary call and response among environmental groups, regulators, landowners, and producers. It also discusses how traditional oil and gas jurisprudence impacts hydraulic fracturing, emphasizing both surface versus mineral rights issues and disputes that arise between two adjoining properties with different mineral rights owners.

It includes an examination of the regulatory frameworks currently in place in 13 states where hydraulic fracturing is common. This state-level analysis is made with an eye toward regulations specific to hydraulic fracturing and the fluids used, as well as more overarching regulations that include 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, the report describes bills under consideration, as well as important opinions from state courts  and the issues for hydrofracking on semi-sovereign tribal land.

Finally, the updated 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. The report’s principal authors – Dr. Kulander and partners Thomas E. KurthMichael J. Mazzone and Mary Simmons Mendoza – were assisted in the update by Liz Klingensmith and other energy associates.

To download the white paper, please click on the PDF link below.