Michelle B. Nowlin of the Duke Environmental Law and Policy Clinic offers an outstanding recitation of the role of eminent domain in fracking. It is well worth reading.
What is not answered is what type of regulatory body will be utilized if an eminent domain delegation is allowed. Will there be limitations on rates? Will owners who lose their property receive a part of the profit or will this simply be another situation in which they are paid what is arguably “just compensation” only for their personal properties?
The notion of acquiring property interests for private property creates many challenges, both constitutional and economic.
The authority of companies engaged in shale gas extraction to take private property to convey the produced gas is clear. Less clear, however, is whether that authority also allows them to condemn land needed for other infrastructure necessary to support hydraulic fracking. For example, may companies condemn the land needed to pipe water to the fracking wells? What about pipes that may be needed to transport “produced water” (i.e., water recovered from the fracking process that is contaminated with chemicals used to fracture the shale)? Or land needed for the construction of the compressor stations?
And what of the wells and well pads themselves? If private companies engaged in these activities are designated as “public enterprises,” then they may be able to take private property for purposes far beyond that of laying pipelines.
The potential threats to drinking water, natural resources and public health from hydraulic fracturing are serious and, appropriately, are the primary focus of most of the public dialogue as North Carolina considers whether to lift the 50-year old prohibition on horizontal drilling and injection of toxic chemicals into underground drilling wells. But the rights of private landowners should also be considered and protected, especially when their property may be sacrificed to benefit someone else’s fracking operation. Landowners should be able to protect their property and local governments should have a say about impacts to their communities.