Author, Ecology Law Quarterly, March 1, 2013
While conflicts between energy development and environmental protection are rarely subdued, perhaps nowhere does this tension run higher than in the context of public lands. The Third Circuit Court of Appeals faced precisely such a conflict in Minard Run Oil Co. v. U.S. Forest Service, which involved the exercise of privately owned oil and gas rights in the Allegheny National Forest. This case illuminated the problems that arise in determining the boundary of the federal government’s authority over private drilling operations on “split estates,” where the federal government owns the surface of the land, but private parties own the underground oil and natural gas reserves. At issue in this case was the interpretation of two federal statutes: the Weeks Act, which governed the acquisition of much of the National Forest System, and the National Environmental Policy Act (NEPA), which requires the federal government to consider the environmental impacts of certain decisions. This Note argues that the court adopted an unnecessarily narrow reading of the Weeks Act and a similarly constrained view of agency discretion under NEPA, presenting environmental concerns not only for the National Forest System but also for other public lands as well. This Note concludes that the federal government’s ability to condition drilling operations on NEPA review is particularly important given the limitations of other federal statutes in curbing the environmental impacts of hydraulic fracturing.