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The fight of fracking gained a new weapon recently, according to Fracking Insider.
“Owners of land with substantial oil and gas resources have begun using the “takings” concept of property law to challenge local bans on fracking. “Takings claims,” which traditionally involve the seizure of some or all of private property without just compensation to the owner, are now being expanded by plaintiffs to encompass the idea that moratoria and bans on fracking deprive landowners of their mineral rights without compensating for the lost economic value of the oil and gas that could be produced.”
According to Fracking Insider, more and more people have started using to “Taking Claims” to battle local fracking bans, saying :
“’Takings claims,’ which traditionally involve the seizure of some or all of private property without just compensation to the owner, are now being expanded by plaintiffs to encompass the idea that moratoria and bans on fracking deprive landowners of their mineral rights without compensating for the lost economic value of the oil and gas that could be produced.”
This use of the “taking claim” could be seen in the case SWEPI LP v. Mora County, NM. In the case the plaintiff landowner challenged a local ban on hydraulic fracturing. They would further claim that the ban resulted in a regulatory taking. The plaintiff argued that:
“Through its prohibition on corporations engaging in any activities related to the exploration for, or extraction of, hydrocarbons within Mora County, the Ordinance denies corporate owners, including Plaintiff, all economically beneficial or productive use of its mineral estates . . . . Such action constitutes a categorical regulatory taking.”
The court decided that since the landowner had not sought compensation from the county, the argument was not fit for the situation. The court would overturn the fracking ban however due to several other reasons.
While, disagreement remains over whether using taking lawsuits for challenging fracking bans will be a useful strategy, it is interesting to note that “some question whether a taking of mineral rights has actually occurred, especially given the multitude of horizontal drilling and fracking techniques that allow different means of access to a deposit.”
Lastly, according the the article, “local governments may also be able to successfully defend their moratoria by arguing that the taking occurred as a result of an effort to protect health and safety.”
Do you believe “taking” lawsuits will prove to be a useful strategy for challenging fracking bans?
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