Fighting Over Fracking

by Laura E. Huggins

There is a battle brewing between the energy industry and environmentalists concerning the dangers of removing natural gas from shale using a process called hydraulic fracturing, or

Fracking involves pushing millions of gallons of water (mixed with sand and chemicals) through wells at high pressure to fracture the shale. Roughly half the fracking fluid remains in the ground. The rest of it comes back out of the well and is considered industrial waste.

This process has been around for more than 60 years. But only in the past several years, with the rising cost of fossil fuels, has it been determined to be cost effective.

Given that fracking is relatively new to the scene many people can’t say if they support this process. The positive economic impact of natural gas drilling is proven, but if this process is contaminating local aquifers there may be unintended consequences, which bring us to property rights.

If there are problems, for example, who is liable, the surface owner or the owner of the lease for sub-surface mineral rights? I would love to read more about hydrofracking and nuisance law or impacts on tribal lands.

One of the few people raising concerns associated with property rights and fracking is Idaho Statesman reporter (and former PERC media fellowRocky Barker.

Company officials told the Legislature that they were negotiating both subsurface leases and surface use agreements. But landowners should be sure the agreements they sign protect their rights, experts said.

Another key issue the oil and gas conservation commission will have to address is unitizing the gas field for development. This process, which delineates how the subsurface resource is divided, is ripe for gerrymandering that could cut mineral right owners out on royalties.


  1. Laura, the Rocky Mountain Mineral Law Foundation Journal carried a good article on the law and hydrofracking. See my post on Knowledge Problem, The law on fracking oil and gas wells, with a link to the RMMLFJ abstract and article.

    With respect to Barker’s points, landowners certainly want to get groundwater and other environmental protections included in agreements they sign. Hardly every do wells or drilling operations cause problems, but in the rare instance you’d want clarity on who pays for what.

    Unitization is less an issue for shale resource development. The gas is relatively tightly locked into the shale and is only accessible after fracking. Unlike typical oil and gas development, there isn’t much subsurface migration due to development of parts of a resource. On the other hand, you may need to worry about subsurface trespass.