Sturm College of Law
Servient surface estate doctrine, Fossil fuels, Fracking, Renewable energy
Are the sins of previous generations of energy development, such as with oil and gas, being visited on the newest forms of energy? That is the question this article attempts to address. Specifically, this article will focus on the problems created by the severance of the mineral estate from the surface and the related dominant mineral–servient surface estate doctrine. Hydrofracturing or “fracking” for oil and natural gas has placed the problems of split estates in the spotlight more than they been in generations. People have been shocked to find drill rigs in their backyards, school playgrounds, and parks. They have been even more appalled to learn that the law of mineral severance has evolved over time to hold that they, as surface owners, have little or no control over such choices by the holders of the mineral estate. The ensuing outrage may ultimately change the current balances in severance law; fracking moratoriums, bans, and lawsuits have slowed fossil fuel development somewhat. However, the unintended casualty in this fray may be renewable energy. Fossil fuel interests are entrenched and well-funded, so state legislators would have difficulty turning back the clock on ownership rights in fossil fuels. However, in the furor against severance, legislators have found it easier to control unestablished renewable energy resources and to enact bans on their severance. While banning severance of wind may be good for many reasons, it becomes problematic if wind also is relegated to a servient estate position in relation to fossil fuel development. This additional handicap will make it more difficult for these new, fledgling energy sources to gain a toehold and survive in competitive energy markets. This article will first provide some general background about severance and the related doctrine of dominant–servient estates. Next, it will address oil and gas severance specifically. Third, it will track the parallels and distinctions between the history of wind severance and the oil and gas history set out in Section II. Finally. Section IV will address the problems with the current responses to wind severance.
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K.K. DuVivier, Sins of the Father, 1 Tex. A&M Real Prop. L. J. 301 (2014)