Reposted with permission from Nadia Steinzor, Earthworks, OGAP

When the landman comes knocking, it’s tempting to open the door wide. The promises made can be beguiling: fast cash, payments for years to come, and hardly any change on your property. Just sign up now…

But harsh reality can set in fast. Maybe it’s a road built right behind the house or through a crop field. Or barrels of toxic chemicals stored next to a drinking well. Perhaps the wastewater pond wasn’t fenced, so thirsty livestock got sick. And when the royalty check arrives, it’s far smaller than expected.

Across the Marcellus Shale region and beyond, there’s abundant evidence that a rush to drill without strong regulations causes environmental and health problems. Less well-known is how the rush to lease in the absence of information, legal advice, and safeguards is harming many landowners, as well as their neighbors and communities.

For more than a decade, OGAP has worked to inform property owners about their rights and what to consider before signing a lease — most recently at landowner workshops in Ohio and Pennsylvania.

Citizens turned out to hear how leases can contain legally binding guidelines for precisely how and where gas development occurs. They learned from OGAP staff about what’s happening across the Marcellus region and nationwide. Attorney and leasing expert Bob Miller detailed what protective leases can look like, and why we all benefit when they exist. Petroleum accountant Mary Ellen Denomy explained the “fine print” of gas payments and how to make sure that companies pay landowners what they deserve. These presentations provide key information for anyone considering leasing or interested in leasing practices.

OGAP is all too aware of the many problems wrought by oil and gas development—and works much too hard to prevent and solve them—to be in the business of encouraging leasing. But we also know that because many people make the choice to lease, it’s far preferable to have it done in a way that protects land, water and air quality, and health, and which doesn’t leave impacted landowners financially high and dry.

Let’s face it—gas companies rarely do the right thing voluntarily on their own. They usually have to be pushed (and pushed) by policymakers, landowners, and the public to drill responsibly. This is the only way to keep citizens in the driver’s seat, ready to put on the brakes, as the gas development train rushes down the tracks.

If you would like to contribute a blog post like this to FracTracker, please contact us at malone@fractracker.org, 412-624-9379.

FracTracker’s blog and DataTool are at their strongest when people contribute to them and comment on the content. In line with that mission, Leslie Avakian of ProtectMyRightsPA has provided the following frequently asked questions on the issue of forced pooling. (Please keep in mind that these are the opinions of ProtectMyRights, not CHEC.) If there are topics or events you would like to see posted on this blog or if you want to share a great snapshot you created on the DataTool, just send us an email with the details.

Q&A — Forced Pooling – Forced Drilling & Use by Right – Zoning Exemptions

ProtectMyRightsPA – September 27, 2010

Why are so many people upset about forced pooling?

Forced pooling would allow natural gas companies to take gas from underneath landowners who have not agreed to it. It would apply in situations where enough of the land around a property is leased. The definition of “enough” is being negotiated. For landowners who choose not to sign a lease, rights to control their property would, in effect, be turned over to their leased neighbors, the State and the gas company. Forced pooling violates the PA Constitution which protects PA citizens’ private property rights. It would be a state law taking control of private property and offering it for sale to a selected industry. Is this not Socialism? These important concerns, coupled with the possibility of legislation being developed without reasonable opportunity for proper public input, gives citizens good reason to be upset.

Is forced pooling necessary?

No. These shale gas plays aren’t free-flowing “pools.” The gas is in the pores of the shale, that’s why it needs to be fractured. Forced pooling in PA’s unconventional shales is a way for gas companies to acquire acreage without landowner consent and without having to make upfront lease payments in areas where they intend to drill, and to expand the acreage they can drill under. It is a way to get around negotiating price with landowners, a way to acquire gas rights at below-market rates, and a way to force people into leases or lease terms they don’t want.

Can property owners be protected from gas theft without forced pooling?

Certainly. The right answer to the risk of having gas taken from property owners without consent or compensation is not to strip property owner rights and force them to accept drilling under their property and the extraction of all their gas. The right answer is to enact legislation to protect the private property rights expressly granted by the PA Constitution.

There are many possible ideas. For example, legislators could develop protections such as fracturing setback requirements, monitoring and stiff penalties to assist landowners beyond the existing legal remedies for subsurface trespass, property damage and theft of gas through fracturing across mineral rights boundaries. If needed, legislators could protect the mineral rights of neighboring landowners through pro-rata compensation formulas based on the permeability of the shale and the location of the nearest operating gas wells. These formulas could be used to pay landowners who have chosen not to lease, but are having some of their gas drawn out unavoidably by a well in the area. Legislators should open these issues to public dialog for ideas on how to best address these concerns, not simply implement forced pooling.

Why doesn’t forced pooling protect the environment?

Forced pooling is not the same as gas well spacing requirements. Gas well spacing requirements can exist completely independent of forced pooling, and vice-versa. Forced pooling does not protect the environment. And the only spacing requirements publicly suggested so far have been arbitrary distances. They do not help determine appropriate places for gas drilling. They simply spread gas wells evenly throughout all land areas in the state – through neighborhoods, cities, next to schools and shopping centers – as long as they are spaced a minimum distance apart.

Is there precedent for forced pooling in PA?

Not really. The Conservation Law includes forced pooling below the geologic strata called the Onondaga Horizon — this is beneath the Marcellus, Utica and Newark Basin shales. Forced pooling as per the Conservation Law has never been applied and has never been challenged in court, and it expressly excludes all strata above the Onondaga. It also differs in many ways from the forced pooling currently proposed. Furthermore, a key purpose of the Conservation Law is to protect correlative rights when gas or oil is extracted from a common pool. The notion of a common pool does not similarly apply to the Marcellus. Correlative rights can be protected in other ways without violating private property rights.

Why would forced pooling be an illegal taking of property?

The PA Constitution contains no provision that allows for a forced pooling law. Further, Article I, Section 1 of the Constitution states that PA citizens have certain indefeasible rights, including the rights to acquire, possess, and protect property. Forced pooling would be an illegal legislative taking of private property.

Is gas drilling already a “use by right” and exempt from local zoning?

No. Gas drilling is not a “use by right” or exempt from local zoning in PA. This was affirmed in Feb. 2009 by the PA Supreme Court in two landmark decisions (Huntley vs. Oakmont and Range Resources vs. Salem). These rulings clearly articulate that the traditional land use and community planning functions of zoning ordinances are not pre-empted by the Oil and Gas Act and are governed by the PA Municipal Planning Code. Only gas drilling processes and practices are governed by the Oil and Gas Act.

But Beware – industry material widely circulated in Harrisburg and elsewhere has repeatedly and incorrectly stated that drilling is already a use by right and pre-empts all local zoning. This is false – the Gas Act does not supersede local zoning for municipal planning purposes, only for drilling processes and techniques. One industry strategy has been to seek a language adjustment to “clarify” legislative intent – but this is really an attempt to fundamentally change the legislative intent – and should not be implemented.

Why are PA citizens upset about use by right (zoning exemptions) for oil and gas?

Taxpayers in local communities have invested significant time and money developing community plans and zoning ordinances to provide for the orderly growth and development of their communities. Use by right for gas drilling would override local government and make gas drilling a “principal permitted use” in every zoning district in the State of PA. Gas wells are noisy, brightly lit, operate 24/7/365, and require thousands of truck trips for each multi-well pad. It is not an insignificant land use. Municipal planning was developed to manage land use, is not superseded by the Gas Act and should not be compromised.

If use by right (zoning exemption) legislation is passed, or the Gas Act language modified to effectively strip communities of their local powers, it will spur litigation by citizens, this time in the Federal court system on the grounds that it is an abuse of the State’s “police powers” in that it fails to promote/protect the health, safety and welfare of PA citizens and directly interferes with and substantially disturbs PA citizens’ use and enjoyment of their property.