When fracking companies own the gas beneath your land

Natural gas companies have cut down forests and paved over farms on West Virginia private lands, calling it “reasonably necessary” to access subsurface gas they own the rights to. A new documentary by US investigative news site ProPublica chronicles the legal battles.

By Mayeta Clark

When Beth Crowder and David Wentz bought their 351-acre property in West Virginia in 1975, they knew that they would only own the surface land, not the minerals beneath it. But it didn’t bother them.

“They showed us gas wells, which were these two tracks in a field where a vehicle would go to, to check on them monthly or even less often,” Crowder recalled. “They were really very, very innocuous.”

At that time, Crowder and Wentz did not envision what future drilling technology might entail and the scale of disruption it would bring to their lives. (They subsequently divorced, but both continue to live on the land.)

Since the mid-2000s, however, drilling companies have crisscrossed West Virginia using a technique that allowed them to drill horizontally from one property into gas deposits across a wide area. The boom is reshaping how West Virginia looks and sounds, as the Charleston Gazette-Mail and ProPublica documented last year.

Before 2007, West Virginia issued only a few dozen permits for horizontal drilling. Over the last decade, the state has issued nearly 5,000.

A new documentary released today by ProPublica and CBSN Originals shows how Crowder and Wentz found themselves right in the middle of this boom.

In late 2010, Crowder ran into a survey crew on the dirt road leading to her home. She learned of plans for a large well site on the property, which would include a 13-well “pad.” Crowder and Wentz fought back against the gas driller on their property, Pittsburgh-based EQT. They hired a lawyer and sent letters telling EQT that it did not have the right to build the pad site.

EQT went ahead anyway, clearing 42 acres of forest, some of which Wentz had cultivated for years for timber. The company put in a road, a 20-acre well pad and a storage pond.

Drilling and fracking just one of the wells that EQT built on Crowder and Wentz’s property required almost 11 million gallons of water and 1.8 million pounds of sand, all of which had to be trucked to the site. By comparison, vertical wells drilled on the property previously used just 305,000 pounds of sand in total.

West Virginia law states that mineral owners have the right to do what is “reasonably necessary” to access their minerals. But the legal concept of “reasonably necessary” was developed at a time when gas wells were a few pipes sticking out of the ground.

The majority of gas that EQT extracted from the well site on the property did not come from beneath Crowder and Wentz’s land, but rather from neighboring properties. The 1901 lease gave the company the right to produce gas from beneath the land owned by Crowder and Wentz, but it did not give them permission to use their land to drill into neighboring tracts.

In 2014, they sued EQT for trespassing. In 2017, they won a $190,000 victory in Doddridge County Circuit Court. EQT later appealed to the West Virginia Supreme Court.

Filing a lawsuit against a gas company in West Virginia is a difficult decision. Judges are elected in the state and some, including Supreme Court justices, receive donations from the industry for their election campaigns. Natural gas companies are also valued in communities where work is scarce.

In the last decade, the number of jobs provided by the sector has risen from around 8,000 to over 18,000, with average salaries ranging from $67,000 to more than $117,000, compared with $45,000 for most private-sector jobs in West Virginia, according to an analysis of data collected by Workforce West Virginia.

A Dominion Energy lobbyist drafted the resolution and bought meals for its supporters in West Virginia’s legislature. He says there’s nothing unusual about it. The public wasn’t told.

In 2018, more than half of the natural gas jobs were in the highest paid category, pipeline construction. But those jobs will likely decline in the next few years as the need for new pipelines diminishes.

On June 5, the West Virginia Supreme Court unanimously ruled in favor of Crowder and Wentz. The court said that natural gas companies must get permission from surface owners to use their land to drill into minerals under neighboring properties.

“The right must be expressly obtained, addressed, or reserved in the parties’ deeds, leases, or other writings,” Justice John Hutchison wrote.

For Crowder, Wentz and their lawyers, the decision was grounds for celebration.

“The short answer is, we won. And we won big time,” David McMahon, the couple’s lawyer, told them over the phone.

“It isn’t April Fool’s Day, is it?” Crowder asked, while Wentz, usually taciturn, cheered.

Joshua Fershee, a West Virginia University law professor who followed the case, said that the decision is not going to stop the drilling, but it will cost drillers more. “This is just really about making sure that people are compensated for giving up their rights,” he said.

A representative from EQT said in a statement last month that since November 2018, a new management team has been in charge of the company, and it has undergone a “cultural transformation.” The company now seeks “to maintain more cooperative relationships with landowners and the residents of the communities in which we operate.”

-------------------------

  • ProPublica is an independent, not-for-profit, investigative US online news and features magazine.

Le Club est l'espace de libre expression des abonnés de Mediapart. Ses contenus n'engagent pas la rédaction.