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Forced Pooling: When Landowners Can’t Say No to Drilling

Gas drillers are using a powerful legal tool to force reluctant landowners to cooperate.

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Workers adjust a drilling rig at Anschutz Exploration Corp.‘s natural gas well in Big Flats, N.Y. (Peter Mantius/DCBureau.org)

As the shale gas boom sweeps across the United States, drillers are turning to a controversial legal tool called forced pooling to gain access to minerals beneath private property--in many cases, without the landowners' permission.

Forced pooling is common in many established oil and gas states, but its use has grown more contentious as concerns rise about drilling safety and homeowners in areas with little drilling history struggle to understand the obscurities of mineral laws.

Joseph Todd, who lives in rural Big Flats, N.Y., wasn't especially concerned when he learned in 2009 that his half-acre property had become part of a drilling unit. But when methane gas showed up in his drinking water well after the drilling began, he became outraged, describing forced pooling as "eminent domain for gas drillers."

"We never wanted to be a part of the drilling," he said. "To have something like this happen is beyond frustrating." Todd and some of his neighbors are now suing the company that is drilling near their neighborhood, even though no link has been proven between drilling and the contamination of their water.

People who see forced pooling as an infringement of property rights also tend to oppose the practice, including Pennsylvania's Republican governor, Tom Corbett, who has otherwise been a staunch supporter of the drilling industry.

"I do not believe in private eminent domain, and forced pooling would be exactly that," Corbett told a group of nearly 400 drilling industry representatives and supporters last month. He also said he won't sign pending legislation that would allow forced pooling for drilling in Pennsylvania's gas-rich Marcellus Shale.

Forced pooling compels holdout landowners to join gas-leasing agreements with their neighbors. The specific provisions of the laws vary from state to state, but drillers are generally allowed to extract minerals from a large area or "pool"--in most states a minimum of 640 acres--if leases have been negotiated for a certain percentage of that land. The company can then harvest gas from the entire area. In most cases, drillers aren't allowed to build surface wells on unleased land, so they use horizontal wells or other means to collect the minerals beneath those parcels.

Thirty-nine states have some form of forced pooling law. West Virginia and Pennsylvania each have measures that don't apply to drilling in the Marcellus Shale, and proponents are trying to expand the laws in those states. (Check out our chart of forced pooling laws across the United States.)

In New York, the owners of 60 percent of the acreage in the proposed drilling unit must agree to lease their land before the state oil and gas board will consider a driller's petition for compulsory integration, as it is known there. In Virginia, only 25 percent of the land must be leased. In all states with such laws, drillers must notify all the landowners within the prospective drilling area of their right to participate in a hearing before the oil and gas board, or whatever regulatory agency the state has set up for that purpose.

If the board approves the driller's petition, holdout landowners typically have three choices: contribute to the cost of the well and share profits from the sale of the gas; don't pay for the well and share the gas profits after a "risk aversion" penalty is subtracted, or receive a state-mandated minimum royalty payment. Landowners who choose none of these options are automatically enrolled in the last plan. Opting out is not a possibility.

Gas companies argue that forced pooling allows them to build fewer wells and harvest gas efficiently, creating tidy drilling parcels as opposed to a patchwork pattern of leased and unleased land.

Forced pooling is also supported by landowners who fear that drilling companies will place wells near their property and siphon off their gas without payment. Another group of supporters includes people who own the surface rights to their property while someone else owns the mineral rights--a situation known as a "split estate." Although these landowners usually aren't entitled to any payment, some forced pooling laws compel drillers to compensate them, too.

Big Flats, N.Y, resident Joseph Todd turned to bottled water after his well water suddenly turned murky and smelly, shortly after gas drilling began. (Peter Mantius/<a href='http://dcbureau.org/index.php' _cke_saved_href='http://dcbureau.org/index.php'>DCBureau.org</a>)The complexities of forced pooling can be seen in Big Flats, a town of about 7,000 in Chemung County, in the southern tier of New York. Gas drilling has provided a huge boost to the county's economy, said budget director Steven Hoover, bringing in $30,000 to $40,000 a year in royalties and more than a million dollars in bonus payments from land the county has leased to drilling companies. That money, along with savings in other areas, has allowed Chemung County to cut property taxes over the last few years, Hoover said.

But Joseph Todd thinks struggling communities like his are too willing to accept the erosion of residents' property rights in exchange for an influx of cash.

In 2009, he and his wife Bonnie received a letter from the state informing them that Anschutz Exploration Corporation would be allowed to extract gas from beneath their land.

At first, the Todds didn't think much about it. No construction crews visited the modest ranch house where they had lived for more than 20 years. No heavy equipment materialized in their backyard. A horizontal well was built less than a mile away, but from the road its operations were almost invisible.

Then in September 2010 the couple discovered mud and methane in their private water well. Methane, the largest component of natural gas, isn't toxic, but it can be explosive if it accumulates.

"We've lived in this house for 22 years without any problems, and suddenly the water turns dirty and fizzy and can be lit with a match," said Todd, a firefighter.

After hearing about similar water problems near drilling operations in Pennsylvania, the Todds began to wonder if their dirty water--and the water problems that had simultaneously cropped up at nine neighboring homes--could be traced to the nearby drilling.

Denver-based Anschutz and the New York Department of Environmental Conservation both say the water problems aren't related to drilling. But in February, the Todds and their neighbors filed a lawsuit in Chemung County State Supreme Court, accusing Anschutz and its subcontractors of negligence in the drilling, construction and operation of the wells, causing the families to be exposed to combustible gases and toxic chemicals, and reducing property values. They are seeking millions in damages.

Anschutz spokesman Jim Monaghan said the company abides by state law and has committed no wrongdoing.

Joseph Todd says he's angry, not just about his contaminated well water but about the compulsory integration law that made it easier for drilling companies to move into his neighborhood. He said he has spent thousands of dollars on bottled water and laundromat fees--and that the royalty payments he's supposed to receive, even as an unwilling participant in the nation's natural gas boom, haven't begun arriving yet.

ProPublica's Nicholas Kusnetz contributed to this report.

Correction (May 19): This story has been corrected. It should have made clear that state regulations in New York and Virginia require drillers to lease a certain percentage of the acreage in a drilling unit before forced pooling or compulsory integration can occur, rather than a percentage of the landowners. May 20: This story originally said 38 states have some form of forced pooling law. Actually, 39 states do.

This is not a Shale Gas story…this is not a hundred wells with a thousand tanker trucks in a small town…this is a water story, a WATER POLLUTION story.

They talk about toxic chemicals, radiation present, methane gas, a cement plug (there is no such thing as a cement plug)...this is the end of your drinking water…

Hey, isn’t this the same type of drilling that Oklahoma stopped for investigation because the drilling seemed to be connected to a huge rash of earthquakes? Over 800 earthquakes registered in 2011 in Oklahoma and Arkansas. My home shook several times in the middle of the night, waking me with cracking and slight side-to-side movement. My dog was acting strange that morning with his nose to the floor, going circles. I guess animals just know when something is amiss.

This article states that in New York 60% of the landowners in a proposed drilling unit must lease before compulsory integration can be used to force other landowners into the unit. That is incorrect. Sixty percent of the necessary ACREAGE must be leased. See following NYSDEC link (near bottom of page):

http://www.dec.ny.gov/energy/1590.html

This means that, in theory, if one or two landowners with sufficient acreage lease, they can force their neighbors into the drilling unit.

wow! where is the right wing outrage!
oh never mind these are private companies invading citizen’s property rights so it must be ok.

Cynthia Shearer

May 19, 2011, 8:18 a.m.

Here’s another consideration in Texas, the persons owning the residential land may not own the mineral rights, so you have “consent” being signed by previous owners, people who now live far, far away.

Forced pooling is used everywhere in the United States based on the rule of capture which can trace its origins back to English common law and disputes over hunting reserves. While it may upset holdouts like Joseph Todd it’s a very necessary rule to facilitate oil and gas development, unless you would rather have mineral rights and ownership nationalized like they do in many nations. Without it there would endless litigation over royalty payouts.

As unfair as it may seem that forced pooling can be used to develop oil and gas from an unwilling land owner (even when compensated for it) its also unfair that a few holdouts can stop neighboring landowners for signing leases to develop oil and gas from their property.

At the end of the day people like Todd will still get a hefty check for the royalties of what’s extracted from their land and if the drilling companies were responsible for his well problems (far from proven) he has legal remedies to compensate him for that too.

Also, a minor correction should be made to the article:

In New York, 60 percent of the landowners must agree to lease their land before the state oil and gas board will consider a driller’s petition for compulsory integration, as it is known there. In Virginia, only 25 percent have to agree.

In Virginia its not 25% of the landowners its 25% of the land. If 25% of the land is under lease, even if that land is only owned by 1 individual, it wouldn’t matter if there were 500 other landowners involved.

thelonegunman

May 19, 2011, 10:22 a.m.

seems when the attitude of ‘why are you people living an top of my oil’ comes home to roost… when - suddenly!!! - energy companies start treating people here the same way they’ve treated brown people on the other side of the world for decades, only then does it becomes a problem…

look at how Shell treated Ecuador… and severely polluted that country… or Nigeria… was it news here? no… did (most) people here care? no…

but now that the beast Made in America starts treating americans that same way, there’s outrage… outrage! i tell you…

Mike H: Thanks for providing the correction in regard to Virginia’s forced pooling law. As you can see from my comment above, a similar error was made in regard to NY’s compulsory integration law.

The difference between requiring a certain number of landowners to lease as opposed to requiring a certain amount of acreage to be leased is an important one, since these laws, as written, would allow a single landowner to sign a lease that forces his/her neighbors into the drilling unit whether they like it or not. This is the opposite of the “holdout” situation that you described—it is a situation in which one or two people may force an entire neighborhood into drilling, even if no one else in the neighborhood wants to drill. And the one person who wants to lease may be a speculator who does not even live in the area.

I think, though, that Ms. Baca should not feel too badly about confusing the percentage of landowners with the percentage of acreage; it is a common error, perhaps because most people find it difficult to believe that any law would be as undemocratic as these laws are.

Also, while I understand what you are saying about the rule of capture, I think it is important to note the difference between the conventional gas extraction that has occurred traditionally, and shale gas extraction. In the case of conventional gas extraction, the gas is much freer to move around than gas that is locked up in impermeable shale; the shale has to be fractured in order to allow significant amounts of gas to flow through the gas well. It would be hard to argue that large quantities of shale gas would just naturally flow over to the well next door. Also, while conventional gas wells are vertical, shale gas wells are usually horizontal, and horizontal laterals may be drilled through the property of unwilling landowners. These laterals are thousands of feet underground; still, this is a physical invasion and arguably a form of trespass. What does it mean to “own” your mineral rights if, without your permission, someone can run laterals beneath the surface of your land, fracture your shale, and then drain your gas—gas that has been freed not by the uncontrollable nature of the gas deposit, but by the deliberate and planned horizontal drilling and fracturing of your land?

I think that shale gas extraction is taking advantage of laws that were conceived for a different type of process; if fracturing and horizontal drilling had been needed for conventional gas wells, the forced pooling laws would not have developed the way they did.

thelonegunman: There is certainly something to your argument about Americans not being outraged until they are directly affected. However, it is not as if America is a stranger to the ravages of fossil fuel extraction. I come from PA coal country; I grew up surrounded by strip mines, burning culm dumps, mine flushing, etc. etc. Now I am seeing the whole nightmare starting over again with shale gas; the difference is that this time around we should know better.

No matter where in the world the drilling and mining occur, we should all be aware of the damage caused by fossil fuel extraction. And of course we should all be aware of the dangers of global warming. If we care about this planet and the people who live on it, then we need to use less energy and get much more of our energy from clean, renewable sources.

Just like the old days in the wild west it must be awful to lose control over your own well and it’s good water or to have some “rustler” poison it…

It’s the “waste” water being reinjected in the ground or pumped into an evaporation pond or out of a tanker truck that will be the story.

Mining companies have been drilling for uranium, etc. without permission in many Native American areas - starting the drilling just on the border of the reserve then tunnelling under it. Now the companies have found ways to have their way with all of us. As they say, First they came for…

Good article BUT what bothers me most is that PA Gov. Tommyboy Corbett doesn’t like it.

If Tommyboy,  a known political prostitute doesn’t like it, there must be a reason, probabaly financial. As time goes on, the reason will come out but by then it will be too late and Tommyboy will have bought another election and will be lining his pockets for retirement and the citizens will be burning their drinking water to stay warm.

It’s amazing to me that whenever Corbett sides with you, it must be something nefarious.  He cracked down on Chesapeake.  He’s pretty much put an end to river discharges.  He’s against forced pooling.  He rescinded his violation overview directive…..  Yet everyone still says he’s in bed with the gas industry.  If he is, he hogs the blanket and snores. 

Forced pooling is of great benefit to the environment.  It allows MUCH less surface disturbance and allows the gas to be extracted as efficiently as possible.  I really don’t understand how someone could be so outraged that a 4’ hole a mile and a half under their property is being drilled, and they’ll get a boatload of money for it.

All of these remarks are only concerned with the present tense. How can anybody think it is fair to give some person a bit of money for gas extraction now that will cause the water to be toxic and undrinkable, at random intervals and unpredictable locations, for the foreseeable future? What about compensation for the thirsty people in 3011? What if there’s a little earthquake in 2061 and suddenly many local consumers of well water get mysterious neurological damage? Sue the governor of PA? The Chinese, who will by then own the mineral rights?

It is easy to tell those who have vested interesrts in this process.It also sounds like some of the commercials being run by the oil and gas industry telling us how environmentally friendly they are and how they make what sounds like millions of jobs. These industries have one purpose and that is to make as much profit as thety can with as little concern for us,the environment or peoples rights. They have shown this time and again and until we realise we are fighting a war for survival,they will continue to act with total disregard for we,the people!

and why not nationalize oil and gas?  (after nationalizing medical care)

I would like to know where all the Republicans who continually holler about individual property rights are now?  They are in bed with this industry also. Doesn’t surprise me though!

This is what happens when all your Congressman and Senators (which most are lawyers in the Senate) are owned by corporations and the money they dump into their campaigns to keep the morons in office.

Our entire government is bought and paid for by Corporate Amercia whrerr their is only one thing of interest, MONEY. At any cost, regardless of which state or citizen it violates. The only thing as an American that I know to do when justice is absolutlely unobtainable because its already been purchased is to try and destroy your enemy. That is precisely what we did to the British. Corporations are no longer my neighbors, they’re our enemy. The enemy within. You’ll have to figure out just exactly what that means to you but the path we took in the 1700’s when we decided to take our country back was pretty direct and to the point and I’d be willing to bet thats the only kind of language these arrogant rich bastards will understand as well. You’ll have to figure that out, its your water..(or is it)

Michael—There is one tool our Founders gave us; it is in the Constitution, and it is called Article V.  This alone gives “We The People” the lawful authority to express our sovereignty—state by state—when we compel Congress to call a convention for the purpose of _proposing_ amendmentS to the Constitution.  High law that cannot be vetoed by Congress, the President or the Supreme Court!  Article-V-Convention[.]com

ARTICLE V CONVENTION FACTS

•   The Article V Convention is not a “constitutional convention” or Con-Con, and does not and cannot re-write the U.S. Constitution.

•   Whatever is discussed at the Article V Convention, 38 states must then agree to adopt any proposals before an amendment is ratified.

•   The Article V Convention is simply a deliberative assembly of state delegates discussing what might garner the approval from an overwhelming amount of citizens from across the political spectrum.

•   The Article V Convention is, by law, currently mandated by Article V and the U.S. Constitution.

•   The Article V Convention returns us to the U.S. Constitution and the rule of law, reviving both in the face of current institutionalized corruption.

Time Will Tell.

Fredricka Kulicke

May 19, 2011, 7:58 p.m.

What angers me most about this article is “Denver-based Anschutz and the New York Department of Environmental Conservation both say the water problems aren’t related to drilling.”
I read this all the time. Why is my state allowing these companies to get away with this. Is the DEC corrupt or just totally useless?

I read that with this drilling operation harmful chemicals are often used in the process and this causes water well and pond contamination in some cases.  What we need is oversee of this process and information about what they are using as chemicals in the process.  The forced water and chemical operation doesn’t allow for the public to know what is actually going on.  We need tough rules and regulations to protect people and the environment.  Are farmers going to lose their stock ponds and cattle due to poisoning of the water?  Are whole areas going to be evacuated due to methane explosions?  This is scary.

The PROBLEM is unregulated drilling.

The SOLUTION is an Article V Amendments Convention.

Stand Up And Be Counted…

Lmao!
“Stupid white men”
we recently gave corporations human rights in respect of political funding.

..but finaly the chickens are coming home to roost. The rest of the world can watch whilst Americans choose to continue their unpologetic right to continue to pollute the world, but now at least the consequences are under our feet and more or less immediate, oh but at what a price. One would be hard pressed to find in human history such phsycotic criminal behavior.

It saddens me to say that calling an Article V convention with this current Supreme Court is…a risk.  They blew away the Fourth Amendment on Monday

That, of course, is just an initial step.  But given the opportunity, the “conservatives” would usurp an Article V convention in order to grant themselves “temporary emergency powers” or some such through a seemingly lawful amendment to the Constitution.

That is how these things always go.

It saddens me to say that calling an Article V convention with this current Supreme Court is…a risk.  The SCOTUS blew away the Fourth Amendment Monday - see http://www.washingtonpost.com/politics/supreme-court-sides-with-police-who-lacking-warrant-followed-smell-of-pot-into-apartment/2011/05/16/AFzlnq4G_story.html

That, of course, is just an initial step…but they’ve got the ball rolling.  Given the opportunity, the “conservatives” would likely usurp an Article V convention in order to grant themselves “temporary emergency powers” or some such through a seemingly lawful amendment to the Constitution.

That is how these things always go.

Throw demolishing the Fourth Amendment (think you can stop the state from entering your home when no warrant is required and the motive can now be purely subjective human sensory judgments such as smells and sounds that can simply be attested to rather than proved - and so need never exist at all?) atop the use of the Citizens United ruling to create corporate “super citizens”, and I believe “They’ve got the ball rolling.” may very well be the greatest understatement that I have ever emitted in my entire life.

When the right speaks, the right lies…as too few came to understand too late.

there is no right or left ....there is only fascism and fascists…spare me you phony left right dribble…its the ultra rich bastards against everyone else….Fracking is designed to pollute your clean, unadulterated water and make your land uninhabitable….The parasite class wants to heard stack and pack the useless eater animals into cities…...anyone ever hear of AGENDA 21?

Fracking Disgusted

May 20, 2011, 7:11 a.m.

I agree with most of these comments. The process is yet another despicable result of having corrupt politicians in office. The 2005 energy act gave the freedom needed for these corporations to recklessly pollute our water and gave them the tools and protection to hide the evidence. Too often sources say the landowners have not “proven” the gas drilling has polluted their wells. Prior to the 2005 energy act, it may have been possible. Now they can hide the chemicals they use under the law, so it can cost tens of thousands to find exactly what is in the water, then you won’t be sure. Water tests for drilling chemicals is not an easy run of the mill water test, as some may think. The test for each chemical that “might” be used can cost thousands for each chemical. Tests can only be performed if you know what to look for! You can guess, but then you don’t know if they are using it or not, because they do not have to disclose it! This is why “proving” they are responsible is so difficult. It is like shooting pool in the dark.
How could this happen, with all the regulation of Clean Water by the federal government? They are exempt from regulation. The gas companies, prior to 2005 Energy act, had to show proof that the water aquifer would not be affected by injecting chemicals into the ground. The same as toxic chemical injection well sites still have to do. Hydro-frack wells are no different in their function than injection wells, except for the explosive charges used prior to the actual injection of the chemicals.
Prior to the 2005 Energy Act, the burden of proof was on the driller/injector to show protection of the aquifer, the burden was not on the public that is drinking from the aquifer. On top of this ridiculous reversal of public protection, we gave a couple billion in our tax dollars to the gas and oil exploration industry to help the little fledgeling industries along to freely polluting our water while they profit billions! The tax money may have been more fairly distributed into a fund to help the land owners defend their water. You don’t hear the right wing talking about these increases to our deficit though. Not a word.
I am afraid Michael may have the only long term solution to the problems. Fracking is really only a symptom, not the cause of the problem. As is lack of national health care, reduced education levels of the US population, reduction in the middle class, banksters corruption, failure to tax the top 2% who have 95% of the revenue, all are symptoms, and the list of symptoms goes on and on. Mac Gordie suggests article V solution. In the end, 2nd amendment remedies may be the only apparent solution to the cause of the problem.
We need to take control of our government, wrestle it from the hands of corporations, then protect it from falling into their hands in the future. Only active analysis, participation, and persistence will force this to happen.

There is no such thing as forced “pooling” in shale gas extraction.  As Mary Sweeney pointed out, there is no “pool” of gas to extract from.  The industry, and their supporters, use this description to confuse people, and to scare them into believing that their resource, and potential royalty from it, will be captured whether they like it or not.

The fact is that the shale needs to be drilled, then multi-staged frac’ed at up to 15,000 psi.  In PA, drillers are not allowed to go under your land without a lease agreement, if you own the subsurface rights.  Landmen use “pooling” metaphors and language to confuse, and frighten, and they have oftentimes succeeded, especially with the owners of small properties. 

Compulsory integration, or perhaps, forced participation, would be a more appropriate phrase.

James B Storer

May 20, 2011, 8:54 a.m.

This is excellent.  I have been hoping for a series that begins pointing toward directly confronting environmental pollution and global warming.  I have a country-boy philosophy that the present is the repository of past regrets and future fears.  Today we seem to have lapsed into an ignorance that ignores the future.
I agree with the Mike Lovas (6:39 yesterday), in saying that yes, I would rather have mineral rights nationalized (after nationalizing medical care).  Now, I particularly wish to comment on the last paragraph of the Mary Sweeney comment (19 May 1:20 PM) which articulates her passion concerning global warming and pollution.  In October 2007 a ‘letter to editor’ I wrote was printed by the local paper (WT-E) that rather summed up my feelings about this subject (pollution, warming)  My thoughts on the matter have not changed a bit since then, and the letter is submitted here.
  “A century old and typically delightful “O. Henry” short story features Mr. Hemstetter opening a shoe store in a traditionally barefoot village on Anchuria, a fictional Caribbean island.  Customers do not materialize.  He asks a friend, John De Graffenreid Atwood, to help create demand for shoes.
  John replies, “You can’t create a demand.  But, you can create a necessity for a demand.”  Following John’s wisdom, they successfully “necessitate” demand.  Today, the essence of John’s words glows axiomatically in the proprietary bibles of economic, Madison Avenue, social, and political propagandists.
  Our Earth, and its climate, finds itself in Mr. Hemstetter’s predicament.  We do not yet feel absolute necessity to react intelligently to probabilities of major climate fluctuations.  Worse, many influential corporate and political leaders, speaking from ignorance or self-serving deceit, downplay human contribution to adverse climate trends.
  Thousands of brilliant, highly skilled, organized, and dedicated scientists struggle worldwide to measure, coordinate, and define the symptoms and causes of exceedingly complex climate trends and cycles.  From scientifically obtained data, they constantly furnish updated facts and predictions in terms we non-scientists can understand.  We only need access to a newspaper, library, bookstore, or internet, plus ability to read.
  Climatologists agonize over categories of climate dynamics relating to our excesses.  Acidification of oceans, which may be irreversible, is seriously affecting ocean life.  Chemical pollution of the atmosphere results in warming of the environment and glacial melting.  Glacier melt combining with thermal expansion of ocean water results in rising sea levels and drastically altered currents.  A warmer atmosphere carries more water vapor, resulting in increasingly energetic, exciting, changing, and shifting global and local climates and wind patterns.
  Results from the best of plans for reduction of global environment trashing tie to predictions of world population growth.  Pollution from exponentially added population will nullify efforts that reduce per capita pollution.  Newton’s gravity and Einstein’s speed limit prohibit mass migration to another “Earth” anytime soon.  Therefore, stabilization of world population must accompany climate treaties.
  “Necessity” for intelligent global action is here.  Ask our grandchildren if denial and gluttony are still options today.”

Mary Sweeney seems to be the sharpest pencil in this debate so far.  The difference between the “conventional play” such as the Trenton/Blackriver, and the “unconventional play” such as the Marcellus has primarily to do with the porosity and permeability of the rock.  There are many other factors, but these two seem to be the most prominent differences which come into play in a legal context.  In other words, the ability of the gas to flow ‘naturally’ underground towards the well bore.
It is that perception of underground migration which resulted in the ‘Rule of Capture’

In absence of forced pooling, the Rule of Capture, (judge made Common Law) would control in New York.  The Rule effectively holds that because gas is “fugitive” that the landowner does not own the gas and oil until he or she removes it from the ground and “captures” it on the surface.  Once you physically reduce it to possession on the surface, it becomes yours.  The transfer of the right to possess something is called a lease, therefore oil and gas development is driven by lease documents.  If one has the right to reduce something to possession under these circumstances and successfully does so, he or she therefore becomes the owner. 

The Rule of Capture follows that one has the right to drill and recover any gas which will migrate into a well bore drilled on one’s own land regardless of from where the gas migrates.  This demands that one drill as many wells on one’s property as one can as fast as one can in order to capture more of the oil and gas than anyone else.  This is true because if one’s neighbor drills into the same formation before you do, he or she will drain the gas before you do.  There is no recognition of sharing the gas and oil (correlative rights).  The fastest driller, the most wells, and the one with the most money to do so wins by draining to gas “pool”.  If one looks at the nineteenth century photos of Oklahoma and Texas where every little plot has its well, one can see the environmental damage wreaked by the consequences of this Rule.  In addition, the Rule in its execution effectively caused the trapping of resources in the ground and the wasting great parts of it.  It also contributed to “boom and bust” cycles in the oil and gas industry, alternating between shortages and gluts.

This resulted in the formation of the Interstate Oil and Gas Compact which attempted to implement a system of preventing waste and optimizing the production of oil and gas.  That system included forced pooling.  Correlative rights had to be included because the laws prohibited a landowner/mineral rights owner from drilling unless he or she had the one permit for the spacing unit formed for the drilling.  The spacing unit was the theoretical area drained by one well.  The gas or oil would be shared by all the owners of the oil and gas rights proportionately.  However, how much each owner was paid depended upon one’s “contribution” to the costs of the well drilling etc.  Ownership became separated from compensation, depending on whether one contributed any money.  The owner’s interest in the oil and gas was therefore devalued in favor of the investor’s contribution.  This was rationalized by the fact that the Rule of Capture acknowledged that the landowner didn’t own the gas and oil in the first place, but only the right to take it.  If the owner hadn’t the money to drill in the first place then granting a sharing might be viewed as a gift of what ever he or she was granted in the forced pooling statute.  However, all of this ignores the enormous capital benefit gained by the driller/operator in having to drill ONLY ONE well instead of MANY and to not suffer the need to drill quickly and often.  The savings to the operator would be at a minium equal to the cost of the number of the wells not otherwise required to be drilled.

So where are we today.  Without Forced Pooling the controlling law is the rule of capture which can be worse for the typical landowner because generally, correlative rights arrive only in forced pooling statutes.  The law needs substantial and comprehensive reform.
In New York State, the Department of Environmental Conservation currently interprets this law to allow the well bore to trespass on the integrated party’s property.  This is different from simply draining a pool from the vertical well bore on one’s own property.  And in Texas, its Supreme Court has ruled that fracturing can trespass onto a neighbor’s property legally.  In the Marcellus, the Utica and any black shales, the current law makes little sense, except that the failure to require “pooling” may leave a landowner without any economical way to recover their gas and oil beneath them.  Overlay all this with the strict liability under real property law imposed on a landowner for any hazardous waste on his or her land regardless of whether he or she was responsible for it.  Comprehensive reform cannot be avoided.

where is the America that we all learned about in school? the one that spoke and urged freedom and justice? Has it gone missing or did it never exist at all?

@Coralyn:  The right - the Republicans - opened an undeclared war against the American people when OPEC launched the oil embargo in 1973 and logic lead many of the American people to question our dependency upon oil.  The Republicans - the right - had long been the allies of Big Oil because of their mutual philosophy of take what you can no matter who or what gets hurt.

Once the war began and the right realized their first victory - the defeat of all alternative energy and conservation measures - the right realized that they could take everything away from the American people.

And that has been their singular goal ever since.

The dividing line between the existence of a vibrant democracy in America and its gradual destruction lies in the year 1980, in my estimation, for that is the year that Reagan was elected and enabled the Republicans to use the negative impacts of oil shocks upon our economy to foist the lie of “flood-up/trickle-down” economics upon America.  With that act, they provided themselves with both the financial incentive and the financial means to destroy democracy in America.

And here we are.

Brady Russell - Clean Water Action

May 20, 2011, 11:29 a.m.

And here in PA, now the companies that help drillers get their product to market really do have eminent domain. The PUC just gave it to them:
http://bit.ly/lFpcmq

Just read the above comments to get a perspective how dumb voters are…the comment by ibsteve2u is only talking points by the liberals.  Big oil doesn’t just support Republicans…they support both sides…they hedge their bet, so whoever is in power will do them favors.  BP gave big to Obama in his campaign…DON’T BE FOOLED.  Republicans and Democrats don’t give a sh1t about you or anybody else…if you think otherwise, you are dumber than they think you are.

Remarkable, isn’t it, how sprinkling a comment with insults immediately devalues both the comment and the commentator?

It is like finding a worm in your apple.

Polluted water, saturated with gas and gas perculating through the soil into homes.
It terrifies me to think what this might be doing to soil biology. I can only imagine death on a vast scale with a consequent release of stored carbon in that dead biology.
Will we see vast tracts of land with dead and dieing trees in x number of years similar to acid rain.

The potential damage could be fracking catastrophic

That does raise an interesting question…at what concentrations do migrating hydrocarbons have a quantifiable effect on the surface flora?  If it did affect vegetation growth (whether positive or negative), you’d be able to track subsurface fracturing through aerial and even satellite normal and IR photography.

(Of course if Big Energy discovered that you were doing it they’d likely clear-cut everything between 35 and 45 degrees latitude between the east coast and the Mississippi.)

Early in the last century a energy company tried to steal our land or force our family to allow them to mine coal on it.  After the company bought out our grandparent’s attorney.  Grandfather resorted to a far older and more effective method of keeping trespassers off their property.  Two dead energy workers (and several wounded) later we still own the land and no one has attempted to mine it again.  And if we have anything to do with it they never will.

Granddad and those that helped him were never charged.

It is getting to the point where private property and the right of the owner to determine to what use their property will be put too is becoming a thing of the past. Well that property was bought and paid for by our ancestors through homesteading, and their blood, sweat, and tears.  And if that is what it takes to keep it - then so be it.

Simple message in this case is stay the hell off of our property (or out from under it) for we fully intend to pass it to our grandchildren as it was passed to us.  Pristine.

Now I will say this - what I posted before has been passed down as family legend - so I am not sure how true it is.  Though knowing what I remember of our grand dad it would not surprise me if it was.  Even in his late 70s early 80s when my generation knew him he spit brime stone and hellfire on a regular basis.

One of this countries basics was and is private property rights.  Between Corporations, State, and Federal Laws property owners are losing their rights to determine the use of their lands and what is under it. My husband I have been in the situation of being denied the use of a portion of our own property because of some damned environmental law.  We are currently in litigation over that.

This is getting old, it is time that property owners demand the return of their rights to do as they will with their own property.

GET BEYOND THE PROBLEMS TO THE SOLUTION

WV Girl—The best lawful way to deal with these government and corporate fools is to gather as “We The People” and demand an Article V Amendments Convention for the purpose of “proposing” amendments for potential ratification when presented to the 50 states—once 38 states or 75% approve of well thought out amendments, and ratify it or them, it will be high law or constitutional law.  Congress, the President or the Supreme Court have no say in the sovereign business of the people.  It’s time to stop talking about PROBLEMS and come up with SOLUTIONS—An Article V Amendments Convention IS THE SOLUTION.

It is mandatory that Congress call a convention when 34 states make application; more than 700 applications are “on the books” from 49 of the 50 states and still Congress refuses to do their duty.  Effectively they’re vetoing the Constitution!  Those lying lawyers (politicians) have turned Our Republic into a fascist nation run by corporations and the wealthy.  It’s time to end their criminal activity once and for all!

article-v-convention[.]com AND foavc[.]org

MacGordie
USN Veteran, Active Voter and Mayflower Descendant

The problem with an Article V convention, MacGordie, is our Supreme Court is gone…rotten….corrupted beyond repair.

There is nothing in the Constitution that justifies making corporations “people” with rights…super-citizens, in fact, whose rights are bounded by the wealth they can bring to bear - but they darn sure did it.

If the Supreme Court would flaunt the Constitution like that, then what, pray tell, would prevent them from bypassing an Amendment?  The right’s herd would likely jump right on the “conservative” bandwagon - for there are a number of other Amendments they want stricken.

ibsteve2u—OK, let’s just sit on our hands and howl at the moon, right.

NOT ON YOUR LIFE—Give me an Article V Amendments Convention or give me death.  I will not live in a country run by dead-head politicians who suck-up to the wealthy and powerful; that’s what happened to bring my folks to this country in the 1620.

James B Storer

May 22, 2011, 8:53 a.m.

Ibsteve2u:  good comment a short time ago.  I abbreviate your first sentence as follows:  “Supreme Court…corrupted…beyond repair.”  Indeed.  In comments to other propublica reports there seems to be a consensus among many of us that “corporatism” is perhaps the element that is bent upon destroying us.  The Supreme (Sublime) Court has been handed the power to assure absolute power to the corporation.  I am being redundant, I suppose, but in the early 1800’s a corporations were chartered for specific purposes, that being to successfully perform large and complex projects.  Upon completion, the corporation was dissolved.
  The corporation soon was awarded permanent status (and LLC status), and is now also a “person” with first amendment free speech rights.  This, of course, allows the corporation to go to the workplace floor and intimidate employees in matters of voting, etc..
  Consequently, we now have many “persons” in our nation who are 150 years old and going strong.  They possess vast centralized sums of money for purposes of propaganda, lobbying, and donating to campaign coffers.  I believe the only activity denied the corporation as a person is actually voting in elections.  This, however, is more than compensated for by the vast lump sums of money they use for swaying election outcomes and subsequent legislative actions..    Skartishu, Granby MO

Because the Supreme Court has become way too politicized, it is time they too enjoy term limits—there’s no reason for anyone to hold a “lifetime” position of such absolute authority.  States, and “We The People” MUST stand up and be counted; get a backbone as some would say.  But that’s not all—the Article V delegates must visit many problems for corrective action.  No corporation is a person, and should never enjoy that “right” of “We The People”.

article-v-convention[.]com AND foavc[.]org

MacGordie,

I have no problem with “lawful” if the Federal, State, Local, and Corps would do things lawfully.

However, I have seen them go around the laws (and regulations based off of them) far too many times for me to put any stock in the protections of the law.

As the wife of a corporate attorney who switched sides and now defends the little folk - including our own case.  And having helped draft many environmental regs myself during the late 1970s I have seen how over the years the gov and corps have perverted such to circumvent private property ownership.  Hubby on the other hand has done his share of perverting the laws and regs in favor of big business - until he saw the light.

No I think we are beyond the courts being in anyway shape or form useful defending the rights of the individual and individual property rights.  And if I thought an Article V convention would do any good I would be right there with you.

In my opinion we are beyond that, and it is because the people have been so beaten down by the legal systems that they feel it is of no use.

So if the people do not have the backbone to defend their rights in court, I know they do not have the nerve to take up arms to protect their rights and property - except a few.  So our country is screwed as far as I can see.

And that comes from two others who are veterans - hubby and I - if we knew then what we know now - neither one of us would have served.

WVGirl — Thanks for your comments.  I see a glimmer of hope still burning in the embers of the faithful — be it standing up and being counted for an Article V Amendments Convention or taking up arms against the scoundrels who serve this fascist system.  Time Will Tell.

BTW, I just picked up Catherine Crier’s “The Case Against Lawyers” at the local used book store.  It’s worth reading — she was an attorney, a judge, and now a commentator on TV.

MacGordie:  You’re already living in a country that is run by deadhead politicians—all bought and paid for by big corporations (which the Supreme Court says are to be considered “people”).  It’s a little late to be complaining about politicians who are sucking up to the wealthy corporations….it’s been happening for quite a while!  We, the people, have NO ONE in the U.S. Government that would speak on OUR behalf…we don’t have enough money to convince them like big business…..we’re ALL out of luck!!

In a word? “Gasland” It’s no secret, it’s everywhere. Watch the movie. Use Google Earth to view thousands of wells.

Didi Paano — My comments (this one and the ones above) are not just complaints about politicians, corporations and/or the wealthy; they’re about the SOLUTION to the PROBLEMS we read about on ProPublica and so many other places.  It’s my plea to get you and others interested in an Article V Amendments Convention — Learn a little about Our Constitution every day in some small way so you’ll have the understanding that it’s not just politicians, corporations and the wealthy — the PROBLEMS can be laid at the feet of CONGRESS, because they could do something about most if not all of the situations plaguing our fast failing Republic!

There is a growing number of individuals focusing on compelling CONGRESS to do their Constitutional DUTY: The mandate in Article V of the Constitution which gives Congress NO CHOICE in the matter — it is peremptory (Law not open to appeal or challenge; final) because it is the high law of this Republic.  The PROBLEM is CONGRESS and the SOLUTION is an Article V Amendments Convention.  They cannot be voted out of office as it is because they’ve covered every possible way EXCEPT an Article V Amendments Convention.  When “We The People” reach a tipping point (Maybe 20 million all yelling at them in unison), they — Congress — will call the an Article V Amendments Convention.  Then the behavior in Washington DC will CHANGE for the better.  Slowly in the beginning, but it will change ... and we’ll have our country back in control.  Our control.

It’ll take you and everyone on this list and all their families, friends and associates to SAVE THE REPUBLIC.  I’ve dedicated the remainder of my life to the goal of achieving an Article V Amendments Convention.  You can help by going to foavc[.]org or my website article-v-convention[.]com and begin your DUTY to learn and participate; for yourself, your family, your neighbor or for mankind.

Please sign the petition on my website and read some of the articles.  Thanks.

This article is part of an ongoing investigation:
Fracking

Fracking: Gas Drilling's Environmental Threat

The promise of abundant natural gas is colliding with fears about water contamination.

The Story So Far

The country’s push to find clean domestic energy has zeroed in on natural gas, but cases of water contamination have raised serious questions about the primary drilling method being used. Vast deposits of natural gas, large enough to supply the country for decades, have brought a drilling boom stretching across 31 states. The drilling technique being used, called hydraulic fracturing, shoots water, sand and toxic chemicals into the ground to break up rock and release the gas.

More »

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