10 Pages Posted: 3 Feb 2017

Date Written: February 2, 2017

Abstract

In a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions. Individuals and communities have turned to the law to restrict oil and natural gas production with mixed success. While little explored, there is also potential for private efforts to restrict fracking.

We propose a novel tool, the Mineral Estate Conservation Easement (MECE), to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability. The article assesses whether a MECE is compatible with current state conservation easement acts, whether it would qualify for a tax deduction, and legislative actions that would strengthen the status of MECEs.

Overall, we find that MECEs hold great potential as a private land use tool to restrict hydraulic fracturing in specific settings. While its legal status is well supported in most jurisdictions, in others uncertainty remains, though this could easily be remedied in most cases with minor statutory or regulatory amendments.