In defense of their homes can fracking ban supporters resurrect an argument published over two centuries ago by one of our most inspiring and prolific writers?
There is an assertion by pro-frackers that tends to put some of us on the defensive in places like my hometown of Denton, Texas. Denton is one of several cities who oppose gas and oil drilling in close proximity to our homes, school and parks, where we raise our families.
Some pro-frackers invoke their right as property owners to exploit the minerals that sits beneath their land. It proves difficult to challenge because it is framed in today’s “free market” gospel which many Americans buy into too easily. But is the presumption a valid one?
Texas is one of about seven states that have what’s called “split estate” system. This is where the surface property rights are actually separate from the mineral rights that sit below that property and where “surface rights are subservient to mineral rights.” As I understand it, unless mineral rights are included in your property deed, they are not something you can exploit.
In all likelihood the government, be it federal or state, holds the authority to extract minerals and energy resources from below surface property for the purpose of “control[ing] this … resource which is vital to the nation’s economy and security. Because railroad land grants were split and the surface rights were sold to individuals, many of the mineral rights on those tracts of land are now owned by corporations.” We all understand that corporations have no real obligations to anyone who isn’t a shareholder, but the same can’t be said with governments.
Though the government has the authority do this, granted by the
corporate people’s representatives in Congress, should they always be allowed to do so? Is our energy security really threatened if the oil and gas industry is not allowed to poke holes in the earth anywhere they find evidence of carbon-based sources? Shouldn’t the rights of homeowners who live in close proximity to these oil and gas finds be allowed some say in whether or not actions that emit toxic substances into their air and near water sources take place?
One research paper addresses this issue positing that:
“property rights … in which all parties with surface rights within the designated radius of the development [should] have the same kind of transferable veto over development held by the actual development property. Before development, the developer would be obligated to negotiate an agreement with all owners within some development radius. – Property Rights Regimes to Optimize Natural Resource Use -Future CBM Development and Sustainability (p. 485)
The laws in each state follow the basic guidelines laid out by the courts but keep in mind that some of these laws are arcane and beyond the scope of knowledge we now have that shows gas and oil extraction, especially using the method of fracking, have issues that harm people and the environment. Keep in mind too that these laws are man-made and enacted often out of self-interests rather than a common interest.
Thus the notion that property or the minerals below them exists as an unalterable right of individuals is one that doesn’t exists in any natural state – a state we all preceded from before we became a civil society. So does this observation open a door to counter the traditional claims of mineral rights? A notion that feels compensation is due those who are prevented from extracting those minerals?
This argument is not a new one and my contention moving forward on this is derived from an earlier premise espoused by one of the early American heroes whose writings helped establish the new nation.
Thomas Paine, in his 1795 essay Agrarian Justice expounded on both the benefits and evils produced by civilized life.
“The most affluent and the most miserable of the human race are to be found in the countries that are called civilized.
Poverty, therefore, is a thing created by that which is called civilized life. It exists not in the natural state.
Civilization, therefore, or that which is so-called, has operated two ways: to make one part of society more affluent, and the other more wretched, than would have been the lot of either in a natural state.”
Now you may jump to the conclusion that Paine is going to rally the poorer masses to overthrow the landed gentry of his time. In reality though, what Paine lays out in his essay is a defense of those who both cultivate the land they own and those who have essentially lost their natural rights to the land prior to civilized life. In the prior natural state of hunter and gatherers, not unlike the conditions Paine noted at the time of the North American Indians, there was no such thing as land ownership or its sidekick, mineral rights.
“It is always possible to go from the natural to the civilized state”, Paine writes, “but it is never possible to go from the civilized to the natural state. The reason is that man in a natural state, subsisting by hunting, requires ten times the quantity of land to range over to procure himself sustenance, than would support him in a civilized state, where the earth is cultivated.”
From this proceeds the argument that civilized nations – upon cultivating the land – can sustain larger populations than humans were able to in a natural state which relied primarily upon hunting and gathering practices. This is seen as a benefit by Paine that civilizations create. As a benefit it also justifies the rights of some to possess land, provided of course that they are productive with it to not only benefit themselves but the others who become dispossessed of the land.
A benefit to this arrangement is that it frees some up to pursue other activities that can also be seen as benefits to civilized society. But it also leads to evils where monopolies of land are formed creating a power base for a select few. That though is a debate for another time.
Paine’s essay attempts to create a system of justice for those who lose their natural rights to the land for the benefits achieved from cultivated land in a civilized society. It is his notion however about who really has a legitimate right to the land and the minerals below it that I want to focus on. It is a position that undermines the argument of those who claim that if they are prevented from exploiting the minerals below their land from citizen actions on the local level then that local government owes them the money they feel they would lose by this restriction.
“What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?” – Massasoit, chief of the Wampanoag, credited with saving the English at Plymouth Colony from starving to death
If the property owner is not actually cultivating the land, improving it or making it more productive than he or she found it, or has not contributed to the existence of the minerals below his land, then do they have a valid claim for compensation when restricted from exploiting them for personal gain? Paine doesn’t seem to think so.
“There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue. Whence then, arose the idea of landed property? I answer as before, that when cultivation began the idea of landed property began with it, from the impossibility of separating the improvement made by cultivation from the earth itself, upon which that improvement was made.”
It is only by virtue of the land’s cultivation Paine argues that makes that property of real value. It was in part this intent of the nation-state to grant land leases with the understanding that they would be cultivated to provide for the common good as well as personally profiting from it. From Paine’s perspective, to remove land from the state of natural rights to one that profits only the individual is part of the evil with civilized nations.
Is the concept of natural laws over man-made laws too dated of an idea? Conservative Frank Perkins of the Family Research Council seems to think it has precedence in their opposition to same sex marriage.
Following the 5 to 4 Supreme Court ruling last Friday that stated it was unconstitutional for states to ban same gay marriages, Perkins protested by asserting “No court can overturn natural law. Nature and Nature’s God, hailed by the signers of our Declaration of Independence as the very source of law, cannot be usurped by the edict of a court, even the United States Supreme Court”
Perkins is not someone who I would align myself with on religious issues but his attempt to interject natural rights over man-made laws demonstrates this argument is still a conscious thought and could appeal to a public who too often sees their representative form of government catering to special interests over common interests.
Are those who oppose us in this battle to ban fracking within the city limits making productive use of their property or do they simply possess it for future monetary gain that only they benefit from? Even more important, do they have any right to claim compensation for minerals below their land which they had absolutely nothing to do with in their creation or development?
Now I’m not saying that the benefits of oil and gas as they currently exist should be shut down post-haste. In the earliest days we began to exploit these resources, and as I mentioned earlier we had no knowledge of their ill effects to public health and the environment. These carbon-based resources enabled us to prosper and grow as a nation though it is clear that not everyone benefited equally from this. This would speak to the evil Paine references in his essay about civilized life. That’s not a case I want to make here, though clearly there is one that has been made loud and clear on such inequality.
We now know however that gas and oil extraction, especially from shale rock through fracking poses health and safety risks for people and the environment. The laws that protect this industry are outdated and too easily dismiss the concerns of surrounding property owners affected by fracking. The state does have a right to promote energy sources so that our economy benefits from them but they also have an obligation to ensure that this right doesn’t overlook other rights and responsibilities as the authors of the study above noted. I would add that this responsibility includes finding other sources of energy whose production doesn’t pose the health and safety risks associated with fossil fuels.
When the Texas legislature voted to nullify the fracking ban in Denton, Texas last month with the passage of HB40, they did so with little regard for the new knowledge we have about gas and oil extraction and with the support of the industry who contributes heavily to their campaigns. A clear conflict of interests.
Property owners who allow the gas and oil industry to exploit the shale gas beneath their land are compensated for this. Being prevented from doing so however because this for-profit action also poses health and safety risks for the general public, doesn’t automatically mean that they are entitled to compensation from local tax payers.
In the words of Thomas Paine “It is a position not to be controverted that the earth, in its natural, cultivated state was, and ever would have continued to be, the common property of the human race.” I submit therefore that any claim to compensation for common property, i.e. mineral rights, is null and void or at the very least be shared with the general population as a part of their rights granted by nature.
This does not dispossess those landowners of their property. It does however direct them to find other ways to cultivate their land in ways that do not pose serious risks for their neighbors. Ways that will give them a just and honest account for earning revenue from it.