Reasonable Accommodation: Split Estates, Conservation Easements, and Drilling in the Marcellus Shale
By Paige Anderson
ABSTRACT
Natural gas production from shale formations is potentially a valuable source of domestic energy, but the industry still must overcome many legitimate concerns about drilling's impact on the landscape. One often-overlooked concern is lack of legal protection available to surface owners who have placed their property under a conservation easement, but who do not hold title to the oil and gas beneath the property. Conservationists have discussed whether it is appropriate to accept an easement on a property that might see drilling activity, but have thought little about what to do if a conservation easement already exists and an oil and gas lessee-not bound by easement-the proposes to drill on the property. There is no existing legal framework to deal with this situation; where case law exists, it is often outdated and inadequate. This Note argues that, in light of this problem, the accommodation doctrine, as articulated in Getty Oil Co. v. Jones, represents the best prospect for protecting properties under conservation easement. Adoption of the accommodation doctrine-already successfully employed elsewhere-in Pennsylvania and the other Marcellus states would be a practical way to respect both surface owners' right to conserve their land and mineral owners' right to extract the resources beneath it. By requiring the balancing of multiple considerations when dealing with use conflicts, the accommodation doctrine can both adapt to the changing conditions in the Marcellus and protect, to the greatest extent possible, the owners' expectations regarding the use of their estates.
Natural gas production from shale formations is potentially a valuable source of domestic energy, but the industry still must overcome many legitimate concerns about drilling's impact on the landscape. One often-overlooked concern is lack of legal protection available to surface owners who have placed their property under a conservation easement, but who do not hold title to the oil and gas beneath the property. Conservationists have discussed whether it is appropriate to accept an easement on a property that might see drilling activity, but have thought little about what to do if a conservation easement already exists and an oil and gas lessee-not bound by easement-the proposes to drill on the property. There is no existing legal framework to deal with this situation; where case law exists, it is often outdated and inadequate. This Note argues that, in light of this problem, the accommodation doctrine, as articulated in Getty Oil Co. v. Jones, represents the best prospect for protecting properties under conservation easement. Adoption of the accommodation doctrine-already successfully employed elsewhere-in Pennsylvania and the other Marcellus states would be a practical way to respect both surface owners' right to conserve their land and mineral owners' right to extract the resources beneath it. By requiring the balancing of multiple considerations when dealing with use conflicts, the accommodation doctrine can both adapt to the changing conditions in the Marcellus and protect, to the greatest extent possible, the owners' expectations regarding the use of their estates.
