Split Estate: How Fracking Takes Land Away From Its Owners

Logical as that assumption might sound, more and more people are beginning to see that it's sadly far from true: Ownership of land and ownership of minerals underground are two separate entitlements, and if you live, work, or send your kids to school on a "split estate," you're in trouble.

A split estate happens when a person owns the surface of a piece of land, but not the resources underneath—oil and gas, for example.

That means a private energy company, or even the government in cases of publicly owned mineral rights, is authorized to march onto private (or public) property and start drilling. The most offensive part is that not only can a landowner do nothing to stop them (though by all means they should try), there are also dangerously few regulations on how the process is carried out—and it's one that is both toxic and resource-intensive. Not to mention noisy and smelly.

The process of extraction often involves hydraulic fracturing, or fracking, which was developed by the oil and gas industry to access oil and gas in deep underground wells. Chemicals and massive amounts of water are injected into the ground to cause fractures in the rock, which then allow increased access through a borehole to the gas reserves.

The industry is exempt from some of the most fundamental legal safeguards for public resources. The list is almost hard to believe:

- Oil and gas companies are exempt from the Safe Water Drinking Act. (It wasn't always that way—thank the 2005 Energy Policy Act, passed under Bush and now known as the Halliburton Loophole.)

- Waste related to oil and gas exploration and production is exempt from the Resource Conservation and Recovery Act. (So there are no regulations on its disposal, meaning it can be handled in any way a company pleases, from being injected into the ground—regardless of its proximity to water supplies, animal habitats, etc.—to just being left on the land.)

- Because of loopholes in the Clean Air Act, oil and gas wells are not subject to restrictions on hazardous air pollutants. Garfield County, Colorado, for example, a site where a lot of fracking has taken place, has shown elevated levels of several hazardous air pollutants.

Some counties and cities stipulate "setbacks," which regulate how far a well must be from homes, schools, rivers, and other valuable assets in a community. These are decided locally and can vary quite a bit: in some places, quite a large buffer zone is required whereas in others, wells are popping up literally in the middle of schoolyards. An NRDC report points to Aztec, New Mexico, where two wells were installed less than 400 feet from an elementary school—and less than 150 feet from the school playground. Complaints of fumes on the playground and in the school are frequent—and the health risks are hazardous, even if the industry continues to dispute them.

Contamination is not the only issue: the massive quantities of water consumed by fracking also raise concerns, especially in the west, where water scarcity is already a fast-growing problem. With between 3 and 9 million gallons of water pumped per well and the water table already dropping, the battle over water supplies is not likely to be without a controversy of its own.

On top of it all, the water is pumped at intensely high pressure, and minor explosives are used (they are breaking through layers of rock, after all), which means the earth's very foundations are, by design, weakened. Some suggest that fracking can cause earthquakes, pointing to Colorado and Texas in particular. Then, as a result of earthquakes comes additional contamination—tiny earthquakes in Denver, for example, disturbed the city's aquifer, because who can predict ahead of time where the chemicals will end up. As a result, the aquifer has never been used and the city has turned instead to the western slope for water.

Conflict over land for resources is no longer just an overseas issue, or even one that affects people on the other side of the country. There are oil and gas operations now in 32 states and they're only looking to expand. It's important for those "states and cities and counties to look at what they can do to help surface owners protect their land and their values, " said NRDC's Amy Mall.

Because—the federal government doesn't have a great track record in doing so; and it's not as though Washington isn't aware of the issue. Many of the conflicts have involved federal ownership on one side or the other: either the land is public and private interests want to drill, or private land owners are in dispute with government rights to minerals under their land.

Some Congressmen have certainly tried: the House version of the 2007 energy bill included provisions to protect landowners who have federally-owned oil and gas under their property, but those provisions didn't make it into law, and legislation introduced in October 2008 would have repealed the fracking exemption in the Safe Drinking Water Act, but that too, did not get very far. (Three cheers, though, for the legislators who introduced the bill: Diana DeGette and John Salazar from Colorado and New York's Maurice Hinchey.)

It hasn't been a partisan issue: "There have been officials from different parties that have supported exemptions for the oil and gas industry... politicians from states where there is a large energy industry often support measures that are beneficial to the industry," said Mall.

But there's hope: public momentum is gathering as awareness grows, and efforts are still being made to increase federal regulations. The currently pending Fracturing Responsibility and Awareness of Chemicals Act, or FRAC Act, seeks to "repeal the exemption from restrictions on underground injection of fluids near drinking water sources granted to hydraulic fracturing operations," as well as require disclosure of the chemicals used during fracking.

Watch Split Estate to learn more, and stay tuned to Planet Green for more actions you can take to stop the industrial, and toxic, takeover of lands both public and private. Some individuals' literal backyards are affected, but it's everybody's air, water, and soil, and they should be protected as such.