This land is your land, maybe: A historical institutionalist analysis for contextualizing split estate conflicts in U.S. unconventional oil and gas development

Abstract

In the 21st century, the U.S. has experienced a boom in unconventional oil and gas development (UOGD). In part due to advances in technology, this rapid increase in UOGD has moved extraction practices into geographic areas that have previously seen little or no oil and gas development. As a result, conflicts over property rights have erupted—particularly in relation to split estate situations. To understand this controversy, we must situate it in the conditions which have shaped land use and mineral rights. We argue that past federal and state level governance decisions have created the conditions for UOGD conflicts today. Here, we utilize historical institutionalism (HI) to review the historical actors, processes, and institutions that have shaped how mineral rights have developed in the context of split estates in the U.S. We suggest that tracing this legislative and judicial history through HI is an essential foundation for exploring issues related to UOGD. Most importantly, we highlight these processes of governance as a bedrock for understanding spatial inequality inherent in current split estate law that grants the mineral estate dominance over the surface estate. We suggest that this codification of spatial inequality is problematic both in and beyond the context of split estates in UOGD.