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Legal Implications Emerging from the Shale Gas Drilling Boom

By Catherine M. Chiccine, Litigation News Associate Editor

 

Growth of hydraulic fracturing, or "fracking," and use of natural gas found in shale is one of the hottest topics in environmental and energy law. The technological advances in drilling, combined with the abundance of natural gas in shale deposits, has led to a boom in shale gas drilling. But with unprecedented growth, the law oftentimes struggles to keep up.


The Shale Energy Revolution: A Lawyer's Guide explains the nature of the shale gas boom and analyzes the various issues, regulations, and lawsuits associated with shale gas drilling. At 189 pages, it is not a long read, yet packs the most important information attorneys need to know when practicing shale energy law.


Edited by Barclay R. Nicholson and Sarah K. Casey, The Shale Energy Revolution is divided into four topical chapters, each written by experienced energy law practitioners who are members of the ABA Section of Litigation's Environmental & Energy Litigation Committee. Each well-documented chapter covers one main issue regarding shale energy development:


  • •General characteristics of shale plays
  • •Common litigation issues, environmental impacts, and regulations relating to shale plays, horizontal drilling, and hydraulic fracturing
  • •Common contractual disputes
  • •Water rights and their impact on shale gas development

This book provides an instructive background for those who may not be familiar with energy law, while providing in-depth information for those who are. For example, the book begins with an explanation of the general characteristics of areas, or plays, in which shale is found. While attorneys may be quite experienced with the legal aspects of oil and gas issues, a detailed summary of how shale plays actually work is extremely helpful when discussing a case with a client, whether that case be a contract dispute or a tort claim. This information is written so that those without a petroleum engineering degree can understand.


Contractual and regulatory issues related to shale plays, horizontal drilling, and hydraulic fracturing are also covered. Issues that arise in traditional oil and gas leasing and vertical drilling, such as chain of title issues, incorrect legal descriptions, condemnation issues, and subsurface trespass issues, also arise in horizontal drilling and shale plays. A useful summary of common litigation issues is included for discussion.


For example, when drilling horizontal wells, how does the common notion of vertical land ownership come into play? What kind of environmental impacts can be expected in which states? What kind of regulatory issues can I expect with shale wells, horizontal wells, or fracked wells? While The Shale Energy Revolution cannot answer all of these questions, as research, analysis, legislation, and litigation is ongoing, the book makes the practitioner aware of the issues he or she needs to consider.


The book also illustrates the varying case law regarding these issues and highlights the different regimes various states have employed regarding oil and gas law as it relates to shale drilling. Chapter 3 explains to the reader the biggest concerns that arise when drafting shale drilling contracts. It also provides practice points for the lawyer to take into consideration when representing a client who would like to enter into a shale drilling contract—or a client who would like to dispute the terms of one.


The final chapter emphasizes the importance of practitioner awareness of the water law of the state in which the well is being drilled. Drilling a typical shale well can take between 65,000 and 600,000 gallons of water, and fracking a well can take between 2 million and 5 million gallons of water. Thus, the water law of the state in which the well is being drilled becomes very important. The practitioner must be able to answer questions regarding the legality of water usage for the client, whether that client is a producer, operator, landowner, or governmental entity. Laws vary greatly from state to state, and the book provides analysis, background, and resources for consultation, while underscoring the importance of knowing the relevant law in one's state.


The Shale Energy Revolution illustrates the multitude of issues a lawyer must take into consideration when representing clients in the shale drilling context. Because of the unprecedented growth in shale drilling, this book does not so much provide solutions or concrete answers to every issue that arises, but rather serves to make the practitioner aware of the prominent issues as well as the pertinent laws and regulations regarding such issues.


The Shale Energy Revolution essentially provides the reader with a one-stop shop on shale energy law and, for that reason, any oil and gas practitioner should keep this book at his or her desk.


Keywords: Shale Energy Revolution, shale drilling, hydraulic fracturing, fracking, oil-and-gas litigation


The Shale Energy Revolution: A Lawyer's Guide (ABA 2015) is available at the ABA Webstore or by calling 1-800-285-2221.


 
 
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).


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