Looking for a thorough examination of the law with respect to fracking? This article, “American Law and Jurisprudence on Fracing,” appearing in the Rocky Mountain Mineral Law Foundation Journal looks pretty good. (Abstract of the article here; PDF of full article here.)
From the conclusion:
Given the size of the potential reserves made available by fracing, the influence and capital of the producers of natural gas, the money made by the mineral owners in bonus and royalty, and the jobs and tax revenue that fracing make possible, widespread hydraulic fracturing will continue and the hunt for prospective shale oil and gas will proliferate. Some cities and counties—and perhaps even some states—will succeed in preventing fracing through the pressure of citizens’ groups and environment organizations, but too many parties stand to gain too much from this technology for fracing to be entirely stopped.
From a jurisprudential standpoint, the biggest question that states will need to settle, probably through case law, is whether fracing that can be proven to cross property boundary lines and which facilitates draining of an unleased neighboring tract constitutes trespass. Case law in currently limited, but until now, the prevailing attitude seems to be that the rule of capture allows such drainage unless the owner of the drained tract can prove some kind of damages outside of lost ultimate recovery from his tract. Another question is whether fracing that enhances production for one tract, but is detrimental to ultimate recovery for an entire unit, will be found to run afoul of the conservation efforts of state agencies.
The article includes a state-by-state review of developments as well as a discussion of the federal debate. While the EPA continues investigating fracking activity, the article suggests that the “flurry of state and local [regulatory] activity may attenuate the interest of EPA in federal oversight of fracing.”
The authors are Thomas E. Kurth, Michael J. Mazzone, Mary Simmons Mendoza, and Christopher S. Kulander. Yes, they write the word as “fracing.” But give them a break, they published last year. I’m sure they know now all the cool kids spell it “fracking.”