By William A. Ruskin
It is the dream of many landowners in the United States to one day have both oil wells and wind turbines on their land. For this happen, however, landowners must play an active role in keeping oil and wind companies from trying to overreach each other in concurrent development of the land.
In their excellent article published by the University of Denver Sturm College of Law titled, "Jousting at Windmills: When Wind Power Development Collides with Oil, Gas, and Mineral Development," authors K.K. DuVivier and Roderick E. Wetsel suggest that landowners will have to act as referees in an energy "Super Bowl" if they are to be successful in having concurrent wind and oil development on a single piece of property.
As DuVivier and Wetsel discuss, the spread of wind farming across mineral-producing states has raised concerns among mineral rights owners because of the large swaths of land needed for wind development. Today's turbines, like those produced by General Electric, rise to a height of 262 feet at their hub and have a rotor radius of approximately 125 feet. Although the surface footprint of each turbine is relatively modest in relation to its height, wind development requires more extensive surface use than traditional oil and gas development due to: (1) turbine spacing; (2) buffer zones; (3) other surface uses such as roads, substations, operations and maintenance facilities, and laydown yards; and (4) overhead and underground transmission, collection and distribution lines.
Significantly, the turbines are linked by a spiderweb of underground and overhead transmission, collection and distribution lines. Although these lines may take up little surface space, they may interfere with concurrent use of the same land for oil, gas or mineral exploration and development.
Although there is a well developed common law concerning whose rights are superior to whom in any given situation, a landowner is much better off altering these common law approaches by making express agreements with wind project developers and prospective mineral estate lessees. If the landowner, as grantor, can negotiate clauses in the lease agreements that put pressure on lessees to work together, it may eliminate some of the battles that can occur between wind and mineral developers in the absence of clear contractual terms.
Over the years, mineral companies have come into conflict with surface owners and other lessees such as farmers, ranchers and hunters. These conflicts are due primarily to the conflict rising from the severance of the surface estate from the mineral estate such that surface owners frequently do not own the minerals underneath their own property. Although the mineral lessee may interfere with a landowner's ranching or farming operation, many courts view it as unreasonable to allow the mineral estate owner to give way to grazing animals and not be allowed to develop the underlying minerals, i.e., by not drilling wells, building roads, powerlines, flowlines and tank batteries.
Unfortunately for the surface owner, the laws of certain states, such as Texas, require the landowner to provide the mineral lessee a large measure of deference to permit the development of mineral resources. For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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