Revised projections of the viability of the Marcellus Shale have led experts to estimate that it contains hundreds of trillions of cubic feet of recoverable natural gas. A more recent study conducted by the United States Information Administration in its Annual Energy Outlook 2012 found that even though these early estimates were overstated, 141 trillion cubic feet of gas is available for recovery. This has created an inevitable race in Pennsylvania to acquire the rights to as many potentially viable gas deposits as possible, giving birth to competing interests and unavoidable conflicts.
This harsh truth is most apparent when the rights to a given parcel of land have been severed, separating the surface rights of the property and the underlying gas rights. Such a severance, especially when a surface owner receives no royalty benefit from the mineral estate, can create antagonistic concerns for each rights holder that can escalate to the point of a zero-sum game. Up until this point, Pennsylvania common and statutory oil and gas law had adequately evolved to deal with these inimically opposing interests. Though clearly not perfect, controlling law managed to create a balanced rubric aimed at the overarching goal to “permit the optimal development of the oil and gas resources of Pennsylvania consistent with the protection of the health, safety, environment and property of the citizens of the commonwealth,” as in Pennsylvania’s Oil and Gas Act, 58 Pa. Cons. Stat. Ann. §3202.
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