A Fractured Standard: How the Fourth Circuit Granted Expansive Implied Property Rights to Mineral Owners

Abstract

Extraction of natural gas through hydraulic fracturing poses a significant risk of harm to human health and the environment. West Virginia, like many states that lie above vast oil and gas resources, grants expansive implied property rights to owners of subsurface mineral estates. In Whiteman v. Chesapeake, L.L.C., the United States Court of Appeals for the Fourth Circuit held that a hydraulic fracturing company’s construction and use of drilling waste pits on the surface of another’s property did not constitute a trespass under West Virginia common law because it was reasonably necessary for the recovery of natural gas and did not impose a substantial burden on the surface property. This Comment argues that the court’s decision misapplied a common law standard to a unique set of facts and, as a result, has significantly diluted the protections afforded to individual landowners. The court should have determined that a permanent disposal of waste on the surface of another’s property exceeds the implied rights of mineral estate owners because such a use is not necessary. In addition, even if the court had found that such a disposal was necessary, it should have concluded that permanent disposal of waste was not reasonable.