While media attention on fracking often centers on the risks it poses to people and the environment—such as the potential health harms from well-site air pollutants or the potential for frack wells to contaminate fresh drinking water—today, I’d like to talk about fracking’s potential risk to something a bit more abstract: our traditional and constitutionally protected private property rights.
In the U.S., fracking and private property are more closely linked than they are in most other countries because, here, rights to use subsurface land (or “mineral rights”) are frequently owned by local residents, not the government. This means that in order to drill for oil and gas, large, multi-national corporations often hire teams of “landmen” to come into small towns in order to obtain mineral lease rights from individual landowners, which can result in leases that are unfair to local landowners or that negatively affect a homeowner's mortgage.
In the current frenzy of the fracking boom, gas leasing and fracking can also seriously injure the property rights of many others in the community. Here are a few examples:
Protection from Nuisances
The law of nuisances has been around since colonial times, and its basic principle is simple: landowners cannot use their property in a way that harms another’s land. Or, to put it differently, you have a right to be free from your neighbor unreasonably interfering with your use and enjoyment of your own property.
In an example from one of the earliest nuisance cases, Aldred’s case, William Aldred’s neighbor, Thomas Benton, built a pig sty on his property close enough to Aldred’s house that the stench made the home practically unlivable. When Aldred sued Benton, Benton defended himself by arguing “one ought not to be of so delicate nosed, that he cannot endure the sent of hogs [sic].” Fortunately for Aldred, the court disagreed with Benton, finding that it wasn’t Aldred’s nose that was the problem, but rather the “insalubrious odours of the [pig] muck” that Benton let collect next to his neighbor’s home. In other words, the sty was an illegal nuisance.*
Fracking may be no different. While a frack well and a pig sty are, of course, not the same thing, fracking generates a number of unpleasant and traditional-nuisance-like harms: glaring light from nighttime drilling; 24-hour noise from the fracking and re-fracking of each well; and the dust, noise, and traffic from the thousands of heavy truck trips. Furthermore, in states like Pennsylvania, where such dumping is allowed, I’m sure the noxiousness of an open-air fracking waste pit could go toe to toe with a pig sty any day.
Zoning and Land Use Law
Zoning and land use law developed out of nuisance law about 100 years ago, in part, as a response to the new and destructive harms created by the industrial revolution: machinery that clanged and banged, incinerators that belched thick black smoke, and factories that regularly stored or disposed of their toxic byproducts on site. Like nuisance law, the original principle behind zoning and land use law was also simple: use local democratic decision-making to organize land so that harmful uses are put where they are less likely to harm people or their property. These laws protected property rights holders both by stopping injuries before they occurred, and by giving greater voice to local residential leaseholders (A.K.A. renters).
Today, land use law deals with everything from skyscrapers to cornfields, but the ability for towns to make land use decisions when it comes to high-risk, industrial activities is still one of the most important local powers. This is why it is critical that with respect to fracking—an activity with understudied environmental and public health harms and one that can dramatically change the character of communities—local towns retain traditional land use authority. This is also one of the reasons NRDC created the Community Fracking Defense Project.
Protection from Trespass and Forced Pooling/Compulsory Integration
The law of trespass (another several hundred-year-old legal doctrine) protects a property owner’s right to keep stuff (or persons) off of their property that they don’t want to be there. As the Supreme Court put it, a landowner’s “power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights.” The principle behind trespass is perhaps the simplest: if someone puts something on your land without your permission—that’s illegal.**
The states, however, can and do write laws that override the law of trespass, and one of those types of relates to “forced pooling” or “compulsory integration” of mineral rights. Forced pooling laws allow drilling operators to take oil and gas from under an owner’s land without their permission, so long as they own or have leased enough of the mineral rights in a particular area. In New York, for example, if an operator owns or has leased 60% of the land within a specified area around a well, known as “spacing unit,” they are allowed to forcibly take oil and gas from under the remaining 40% of the land, provided they pay a royalty to the owners of that land.
One of the original purposes of these laws was to protect landowners from having oil and gas sucked up from under their land without compensation, because “traditional” oil and gas deposits were generally found in large underground reservoirs, the contours of which were impossible to determine from the surface. But with fracking, forced pooling doesn’t protect landowners at all because shale gas does not exist in a big pool or bubble.
Instead of sucking the gas up from a single piece of property, shale drillers usually get gas by drilling out horizontally under several people’s property and then fracking. In other words, if you are a landowner, forced pooling laws allow drillers to drill into your subsurface land, and frack it, without your consent.
While forced pooling laws don’t protect landowners when it comes to shale gas, they do protect the drillers’ interests. This is because these laws make it easier to frack under private land without the “hassle” of getting permission from private property owners. To the extent that fracking may sometimes lead to future water contamination, it also makes it easier for these companies to put the health and property of local residents at risk.
Equal Protection for All
The conversation on fracking and property rights often focuses on the rights of the leasing landowner, but when fracking comes to a neighborhood it affects the property rights of everyone. Whether it’s an apartment lease or the title to the family farm, most people have property rights in a piece of land, and the Constitution and the laws of the states protect all of those rights equally. That’s why when it comes the decisions about fracking that affect a community’s health and property rights, it’s important for all local residents to have a say.
*The Supreme Court has also noted that “[e]ver since Aldred's Case, it has been the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants.” Camfield v. U. S., 167 U.S. 518, 522-23 (1897).
**For the wonks out there, the type of trespass I am describing in this section is “trespass to land” and the quote is from Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).