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The New Fracking Statute: A Huge Loophole and, worse yet, a Trojan Horse

by Vito A. Mastrangelo February 12, 2014

During the recent debate about new methods of fracking, the oil and gas industry used the term “fracking” as in “We’ve been fracking for 50 years.”  What they meant, at that time, by “fracking” was vertical “hydraulic fracturing,” the process of cracking open shale or other underground formations, by using high pressure in a vertical wellbore, to get the oil or gas to flow out.  It is true that the industry has been using that kind of “fracturing” for 50 years–but not by using enormous quantities of water, not by using toxic chemicals, and not by using horizontal wellbores.

In June 2013 the state legislature enacted the new fracking statute–the Hydraulic Fracturing Regulatory Act (HFRA), which regulates only “high-volume horizontal hydraulic fracturing.”  Now the oil industry uses the term “fracking” differently than it did before.  When industry folks use the term “fracking” now, they mean “high-volume horizontal hydraulic fracturing,” as in “This is not a fracking operation.”  They say this because they do not want their newest drilling operations to fall under HFRA!  Drillers have started using nitrogen (or some other base fluid), rather than water, and therefore the newest oil-drilling operations do not use more than 80,000 gallons of base fluid in any stage or more than 300,000 gallons total, which are the quantities of base fluid that trigger the definition of “high-volume horizontal hydraulic fracturing” under HFRA.  Voila!  New statute rendered irrelevant.  Supposed “strictest regulations in the country”?  Irrelevant.

So, after all the time and effort and lobbying and arguing that preceded the enactment of the new statute, and then surrounded DNR’s proposed regulations, the oil industry’s newest drilling operations will not even be covered by the new statute and regulations!  Someday, perhaps, we might take some solace if we have stopped industry from contaminating enormous quantities of water.  Only time will tell.

Meanwhile, on January 30, 2014, one new horizontal fracking operation in Wayne County has resulted in a blowout/explosion, causing injuries.  The local newspaper was told that the operation was “hydrogen fracking.”  That drilling operation does not have a HFRA permit.  There are other reports of illegal high-volume horizontal fracking operations, one occurring within just a few miles of rivers in southeastern Illinois–without the required HFRA permit.  Illinoisans are being used in an experiment that will result in environmental degradation, personal injuries, and other negative consequences for the health and safety of persons, livestock, pets, and wildlife.

The very thing that legislators and the big environmental groups used as the reason to support the regulatory bill–that is, to avoid horizontal fracking becoming the Wild West in Illinois–has come to pass.

But something even more sinister is afoot, something broader than unregulated horizontal fracking.  A Trojan horse.  A stowaway.

Implicit in the lines of the 123-page HFRA is the greatest transfer of property rights in state history, involving the transfer of as much as 99% of Illinois real property ownership.  Subsurface rights.

Under common law–existing from the time of the founding of our country, to the creation of the State of Illinois, to the present time–a person who owns the full bundle of rights in land owns the surface and all that is below it.

Thus, if a landowner owns the full bundle of rights in a piece of land, then drilling on, under, or through that land without the landowner’s consent would be an illegal trespass.  If that were done without due process, it would be an unconstitutional taking.  Under that scenario, access to the surface without the landowner’s consent would also be a trespass.  But, under HFRA, notice of a high-volume horizontal frack job is only required for those landowners within 1,500 feet of a well pad, despite the fact that a horizontal wellbore can go 5,000 or even 10,000 feet horizontally underground.  And for a horizontal frack job that is not high-volume, neither HFRA nor existing DNA rules require the consent of all affected landowners and mineral owners before a drilling permit is granted.  Thus, state government is allowing the oil and gas industry to take the property of landowners without their consent and even without giving them notice.

Even in the case of a “split estate”–when a landowner does not own all the subsurface rights in the land–for example, where the rights to drill for and extract oil or gas (“mineral rights”) have been transferred to others, the landowner still has the other rights in the subsurface.  The subsurface has value beyond just oil and gas or other minerals.    Stated differently, under the usual type of deed transferring mineral rights, the owners of the mineral rights do not get ownership of ALL the subsurface; they only get the right to explore for and extract the minerals described in the deed.  So, the owner/s of the surface and subsurface should always get notice of plans to drill a horizontal wellbore under or through his or her land, and their consent should be required.  But that is not the case under the new regulatory “scheme.”

Until HFRA was passed, Illinois statutes did not contemplate horizontal drilling for oil or gas.  Thus, even for drilling operations that do not fall under HFRA, a  horizontal drilling operation is a “subsurface trespass” if the operator/driller has not provided notice to and obtained the consent of all landowners who are over the path of the wellbore and all owners of other subsurface rights in the path of the wellbore.  If the legislature fails to amend Illinois statutes to correct the current situation, only litigation may be able to stop it.  Individual landowners should not be forced into this predicament.  How will a landowner know to sue if he or she is not notified that his or her property is involved?  How many legislators understood all this when HFRA was voted upon?  I can only guess; perhaps not many.  This issue of property rights was never a part of the public debate on fracking, and the issue has never been raised by the big environmental groups, at least not publicly.  But there it is: yet another boondoggle by the legislature.

Vito Mastrangelo is an attorney based in Mt. Vernon, Illinois, and is a member of the Steering Committee of SAFE (Southern Illinoisans Against Fracturing Our Environment). —————————————– Note 1 Note, “Owning the Center of the Earth: Hydraulic Fracturing and Subsurface Trespass in the Marcellus Shale Region,” Colleen E. Lamarre, 21 Cornell Journal of Law and Public Policy 457 (2011), available at, last visited February 7, 2014.

Note 2 See “Owning the Center of the Earth,” John G. Sprankling, 55 UCLA Law Review 979 (2008), where the author argues for the abolishment of surface owners’ rights below 1,000 feet, available at, last visited February 7, 2014.

Note 3 Regarding current illegal high-volume horizontal fracking operations without a permit, see


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