In "Split Estate," Homeowners' Land and Rights Are Sold Right From Under Them
By Kim Pearson on March 15, 2010
BlogHer Original Post
The push to expand domestic oil and gas drilling in the United States is creating some vexing dilemmas for homeowners who complain about what some companies are doing under the surface of their land. According to a new documentary, Split Estate, energy companies that obtain drilling rights on private lands are subjecting homeowners to toxic pollutants, ruining their livelihoods and generally wreaking havoc with the quality of their lives. At the same time, some homeowners and municipalities see the practice as a lucrative opportunity, and energy companies insist they make every effort to respect homeowners rights. Meanwhile, proposed legislation in the House and Senate that would force some drilling companies to disclose information about the toxins they produce is stuck in committee.
First a bit of background for easterners like me who only learned a few years ago that there could be a difference between owning the surface rights to a piece of land and owning what's underneath. According to a presentation on the website of the US Bureau of Land Land Management, the practice of splitting the surface and underground rights to land dates back to the Homesteading Acts of the late 19th and early 20th centuries. Students of American history might remember that in an effort to settle the western territories won from Mexico and Native American tribes, the US government offered free land allotments to people who were willing to set up and homesteads for a certain number of years. Eventually, government officials realized that some of that land contained valuable water, coal, oil and gas deposits, so they set up "split estates" in which surface rights might go to a homesteader for farming, but underground rights might be sold or leased to someone else. Private landowners and companies also entered into split estate arrangements.
When government agencies lease land to energy companies, those companies are supposed to negotiate with homeowners about what will occur and how it will take place, and they are supposed to negotiate compensation. Energy companies say they follow similar practices in private split estate deals. But according to people interviewed for the documentary, it doesn't always happen that way. As this trailer reveals, homeowners say they have had drilling rigs set up in their yards despite their objections. One man said his family's cemetery had been destroyed.
What's worse, residents say they are getting sick from toxins in their water and soil, due to an increasingly common technique for extracting gas from shale called hydraulic fracturing or "fracking." The practice involves bombarding the shale deep underground with millions of gallons of water to split it open and make it release natural gas. Energy companies say the chemicals used in the process, and its byproducts are trade secrets. That's why Colorado Rep. Diana DeGette introduced legislation (nicknamed the FRAC act) before Congress last June that would make oil and gas companies reveal the chemicals they use in fracking operations. The bill is awaiting action by the House Energy and Commerce Comittee. A companion Senate bill sponsored by Pennsylvania Sen. Robert Casey, awaits consideration by that body's Environment and Public Works Committee.
To be clear, not everyone is concerned. In the last few years, some homeowners and municipalities have looked at selling their mineral rights as a cash bonanza. One byproduct of that is that drilling has moved closer to population centers than in the past. A 2006 Washington Post article captures the boom times spirit in Fort Worth Texas at the time:
"Thousands of residents in this metropolitan area of 1.3 million...have signed over the mineral rights under their land for lease bonus payments and the promise of monthly royalty checks for decades from companies erecting well pad sites and derricks all around town."
In New York State, the question of whether to reign in hydrofracking has been controversial for the last several years. A rock layer called the Marcellus shale that runs through New York, Pennsylvania and some parts of Appalachia is thought to hold a motherlode of gas deposits, according to this 2008 investigative report from ProPublica that ran in the Albany Times-Union. But the techniques for extracting the gas are more complicated than what's been done in the region before and the waste disposal methods that mining companies have used out west aren't geologically feasible. Nationally, Propublica found that officials in three states believe that fracking has damaged the water used for drinking and farming, but because current law exempts these companies from disclosures normally required under the Clean Water Act, the EPA can't monitor the extent of the damage. ProPublica also quoted industry representatives' contention that the FRAC act was unnecessary and burdensome.
As Patricia Lee Sharpe at WhirledView notes, the most important thing is that homeowners and community residents make informed decisions. She points to a case described in the documentary where the local government decided against allowing drilling after local officials and residents studied the matter. She concludes, "If the people of Santa Fe County can stand up to get-rich-quick drilling proposals, others can too."