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Rachel Heron, Justin S. DuClos & Shaun A. Goho, The Interpretation of Surface Easements in Severance Deeds as a Limit on Hydraulic Fracturing Practices, 19 Buff. Envtl. L.J. 73 (2012).

Abstract: Hydraulic fracturing has driven a boom in natural gas production in the Marcellus Shale. While providing a growing source of domestic energy, this boom also raises signicant environmental concerns. Many of the impacts of hydraulic fracturing predominantly affect the inhabitants of the property where the drilling occurs. Yet when those inhabitants own only the surface estate, they have relatively little influence over whether and how the drilling occurs and will not profit from the gas extraction. This article provides a jurisdictional case study set in West Virginia to assist in understanding the nuances relevant to an interpretation of the scope of express and implied surface easements pertinent to mineral extraction. West Virginia takes a unique approach to the accommodation doctrine. It permits a surface owner to argue that certain overly burdensome practices may not have been contemplated by the parties to the original severance deed and easement, thus weakening the likelihood of their propriety and giving surface owners leverage. Depending on the type of easement at issue, the analysis can include a review of the burden to the surface, the nature of surface uses, the necessity of a practice, the compatibility of a practice, and/or contractual intention.