Supreme Court dishes property owners a Fifth Amendment victory

By Bonner Cohen, Ph. D. @ CFACT

In a decision that sent chills down the spines of environmental groups and raised the spirits of property rights advocates, the U.S. Supreme Court June 21 removed a significant legal barrier that, for decades, had effectively barred aggrieved landowners from challenging local ordinances in federal court.

The court’s 5-4 ruling restores property rights to the full constitutional status the Framers envisioned when they included the Fifth Amendment’s Taking Clause in the Bill of Rights, opening federal courts to property owners seeking “just compensation” for the taking of their property by government.

Property owners’ access to federal courts had been effectively blocked since 1985, when the Supreme Court, in what is known as its Williamson precedent, ruled that landowners must first bring takings claims against local governments to state courts before proceeding to federal court. Williamson is short for Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.

Catch 22

For property owners, Williamson created a Catch-22 situation, because, under a subsequent Supreme Court ruling, a federal court generally must defer to a state court’s resolution of a claim for just compensation. Property owners caught in this Catch-22 were cast into a neverland of endless, bank-account-draining litigation in state courts, with little hope of ever receiving their day in court at the federal level.

“The takings plaintiff thus finds himself in a Catch-22. He cannot go to the federal court without going to the state court first; but if he goes to the state court and loses, his claim will be barred in federal court,” Chief Justice John Roberts wrote. “The federal claim dies aborning.”

In reversing the 34-year-old Williamson precedent, the Supreme Court will allow takings plaintiffs to bring their cases to federal court, where, if successful, they will receive the just compensation guaranteed them under the Constitution.

“We now conclude that the state-litigation requirement imposes an unjustifiable burden of takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled,” Roberts said, speaking for the majority.

The case, Knick v. Township of Scott, that led to the reversal of Williamson involves Rose Mary Knick, owner of a 90-acre property in eastern Pennsylvania on which a cemetery is situated. Knick challenged an ordinance by Scott Township requiring that cemeteries “be kept open and accessible to the general public during daylight hours.” The ordinance, she and her attorney argued, constituted a taking of her property. Knick filed a takings claim in federal court, but the court, citing Williamson, said she could not bring the suit without going through state proceeding first. She was stuck in the Catch-22.

“This decision is a very long time coming for Rose and other property owners who have had federal court doors slammed shut in their face whenever they seek compensation for a government taking of their private property,” Pacific Legal Foundation (PLF) attorney Dave Breemer, who represented Knick in the case, said in a statement. “The Court’s decision sends a message that constitutionally-guaranteed property rights deserve federal protection just like other rights.”

Fracking Bans and Mineral Rights

Alston & Bird attorney Paul Beard believes the ruling will have a far-reaching effect on energy and environmental policy, especially at the local level.

“In the energy-regulation space, we can expect more – and more successful – challenges to statutes and ordinances that, to take examples from recent trends, destroy or significantly damage oil, gas, and mineral rights. Think fracking bans,” he told E&E News (June 21) in an email.

In fact, the ruling may deter policymakers from adopting such ordinances for fear of triggering litigation, he added.

The United States is unique in its protection of mineral rights. Landowners not only have surface rights – such as the right to grow crops on the surface of their land – but also mineral rights – such as the right to access oil or natural gas located beneath their property. Mineral rights enabled the fracking boom that, over the past decade, propelled the U.S. to the world’s top producer of oil and natural gas. Owners of property situated atop shale formations entered into voluntary agreements with oil and gas companies that allowed the latter to extract the hydrocarbons while generously compensating the former. The arrangement has completely upended global energy markets.
In a bid to derail America’s global energy ascendency, environmentalists and their political allies have enacted local fracking bans, and New York Gov. Andrew Cuomo has decreed a statewide fracking ban.

The Supreme Court’s reassertion of the Takings Clause raises, as attorney Paul Beard suggests, intriguing questions about the constitutionality of bans that deny landowners their mineral rights.

Author

• Bonner Cohen, Ph. D.
  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.

Do you really understand how shale gas companies drill horizontally?

By Dr. Jay Lehr April 3rd, 2019 |Energy| 25 Comments @ CFACT

Admit it, you have no clue.

Of course we have all seen the diagrams of Shale Gas Wells

with the pipe going vertically down into the ground and then turning a right angle to proceed horizontally where the well will be hydraulically fractured (not Fracked). How is that possible? Can you think of any mechanism underground where pipe could turn ninety degrees and keep the end of the pipe, where the drill bit is spinning 360 degrees, to continue penetrating the rock encountered? Of course you can’t, because it cannot be done. Yet amazingly, surely 90 percent of all folks even remotely interested in the topic of shale gas development do not question the possibility of this impossibility. So read on, this well kept secret will be unveiled.

Just over a decade ago, America’s energy out look was revolutionized by technological advances in hydraulic fracturing which has been turned into the slang word Fracking, purposely and cleverly by those who wish to eliminate it from the tool box of US energy development. Hydraulic fracturing is fairly self-explanatory. It accurately conveys the idea that a fluid under pressure is used to break or fracture rock. Most people are familiar with the concepts of hydraulics used to do all kinds of work in cars and machinery. I split wood to heat my house with pressure applied to a blade by hydraulic hoses.

The word Fracking effectively conjures up negative thoughts. It sounds ugly, even a slur on a swear word, maybe even a chain saw massacre movie. If you are inclined to ever talk about the subject, help us fight back by using the words “hydraulic fracturing” and explaining to people who use the term fracking, what they are really talking about. But let’s continue on to how we drill horizontally.

Hydraulic fracturing involves the injection of high-pressure water, to create fractures, along with sand to keep the fractures open, and chemicals to eliminate biological growth that might clog the fractures. All of this then allows natural gas and oil in the rock to be released into the horizontal drill hole and travel under natural pressure up to the surface of the ground where it is collected. It has been done in vertical wells since 1947.

Hydraulically fracturing vertical wells, however, was limited in its value to increase flow of oil and gas by the fact that the vertical thickness of most layers of rock containing oil and gas are only a few hundred feet thick. In 1998, the engineer and businessman George Mitchell recognized that steel pipe could be guided from a vertical plane to a horizontal plane using a flexible drill bit controlled by an internal Global Positioning System.

Those who abhor our use of fossil fuel rest part of their objection to horizontal drilling on their claim that it will pollute our ground water. This would require leakage of the oil and gas through the rock and soil overlying the horizontal pipes harvesting the oil and gas. Here is where the reality defeats the false diagrams of a drilled shale gas well turning at a right angle at any depth the driller might choose. As previously stated, this is impossible.

What they, and likely you, fail to understand is that optimal horizontal fracturing, can only be carried out at great depths. A steel drill pipe will only bend about three degrees per hundred feet of length. It therefore takes thirty 100 ft lengths to bend 90 degrees, bringing the drill bit to a minimum of 3000 below ground before the drilling is actually done horizontally and hydraulic fracturing can begin. From there the well can extend outward for thousands of feet, often reaching out as far as two miles (10,560 feet). Now where hydraulically fracturing a vertical well yielded gas and oil from only a few hundred feet of rock, now the shale gas wells can tap the source formation over more than 100 times a greater length.

Thus the risk of oil and natural gas escaping thousands of feet up to groundwater drinking water sources is infinitesimal. Additionally the vertical portion of the hole that ultimately brings the fossil fuel to the surface commonly has as many as seven layers of telescoping casing.

Now as Paul Harvey used to say, “you know the rest of the story.”

Book Review: The Absent Superpower, The Shale Revolution and the World Without America.

By Rich Kozlovich

The Absent Superpower, The Shale Revolution and the World Without America, by Peter Zeihan is the second book by him I've read. The first was The Accidental Superpower: The Next Generation of American Preeminence which I reviewed here.  Both of these books are impressive.  Since then I've read, and published his articles, with permission, and seen some videos of his presentations.  All very impressive.  The man's clearly brilliant, well versed, well researched, and very good at presenting the information in a way that makes you want to read what he's saying. 

I've not seen analysis like this except in two places.  Stratfor news and the information put out by Dr. Jack Wheeler.  I've found he worked for Stratfor as the Vice President of Analysis and left to form his own company in 2012 called Zeihan on Geopolitics, which explains the similarities.

That was the appetizer, now for the main course. 

He proposes, and very well I might add, fracking has changed the geopolitical dynamics dramatically, and will continue to do so even more in the future.  His book starts out explaining fracking, how it's done, how it has improved technologically, and how the costs related to fracking have dropped to the point where prices being charged by Saudi Arabia will no longer matter.  Recently he publish an article showing how the figure he states in the book is now ever dramatically lower.  Fracking is changing the world, and he breaks this down into three sections.

In Part I, Shale New World, he describes how fracking works, and I've asked around, and for a layman he's spot on, except I don't think you can get a pipe to turn 90 degrees.  Otherwise - I now know more about fracking than I ever expected to.  For those of us who aren't all that interested in the techie stuff is a bit boring, but it's essential as foundation for the rest of the book.

Part II is called "The Disorder", which includes what he terms The Twilight War, the (Next) Gulf War, The Tanker War, The Sweet Sixteen and It's a Supermajor World. 

Part III is The American Play with chapters on "Tools of the Trade", "Dollar Diplomacy in Southeast Asia", "Dollar Diplomacy in Latin America" and "Shale New World". 

I'm totally impressed with the background research he's done on all the problems the world is facing.  For years I've understood the importance of geography and demography in the world geopolitics, but I never fully appreciated both until reading his books.  However, there are some caveats to my enthusiastic review.

First, he goes on to explain what a mess Putin is facing in Russia and then goes on to claim, without foundation, Putin has stashed billions of dollars no one knows about in order to attack Eastern Europe at some unknown time for some unknown reason. 

His analysis of what would happen if America walks away, leaving Europe to defend itself alone, is I think spot on, but in both books it's clear Russia is breeding itself out of existence, the economy is on the verge of collapse and their military is a mess with the exception of their special forces.  I see no earthly reason why Russia would want to attack anyone that would require a full out effort.  Furthermore, dictators don't stash money away to attack someone.  They do it to run away and live in luxury.  So why is the brilliant man saying this?  I will deal with that further.

His analysis of South America and Latin America is so well done it gives you an entirely different view of why these countries are where they are economically.   Because of South America's geography there is nowhere near the amount of trade you would expect among them, but neither have there been many wars.  His analysis as to future American diplomatic and economic policy to Latin and South America is eye opening. 

He's made it clear there's no other nation on the Earth that has the geographical advantages like the United States, assuring economic success, except Argentina, which in the 1920's was one of the richest nations on the Earth, until the socialists took over.   His work clearly demonstrates why countries who adopt socialist policies turn poor countries into cesspools and rich countries like Argentina into a mess.  It will be interesting to watch our Southern neighbors make major changes with regard to the United States, or face economic problems that will become insurmountable. 

All of Asia's problems will center around energy, transporting it safely, and where it's going to come from.  His analysis of China's military capability is impressive in demonstrating they're really good at putting on a big show, but the reality of their geography, demography, economics and a true evaluation of their military capability to impose their will outside their own nation is limited, including use of their naval forces.  Japan will become a much bigger player militarily in that arena when the U.S. becomes more - well, let's say judiciously isolationist.  In short - if there's no benefit there will be no involvement.  You may find Australia's role in all of this interesting, especially since he clearly believes American, Australian and New Zealand involvement won't deminish nearly as much as it will with the rest of the world.

I don't agree with is his views on Global Warming.  He states in the book some criticize him for being a liberal and some for being a conservative.  In explaining his views on Global Warming it demonstrates he's a liberal - he says so - which I find interesting since there are two things liberals hate more than anything.  History and facts, and he excels at both.

However, it explains his hard take on more Russian aggression, Global Warming and failing  to deal with the two most important movements in world events, the Muslim invasion into the west, and the efforts by the United Nations to create a one world government, and promoting the Anthropogenic Global Warming fruad is essential for them to attain that end.  All of which are tenets of current leftist theology.  He's too well researched and too intelligent to not be aware of all of this and the facts surrounding it all.  And I ask why would a man that brilliant be a liberal?

So do I recommend reading his book?  Absolutely! 

I would give it five stars on history, five stars on current events, five stars on analysis and four on conclusions.  When reading his books you will gain insights needed to understand why the world works the way it does, and allow you to become even more aware of how worthless the media really is.  After gaining those insights you can draw your own conclusions, and you may or may not choose to accept his.  However, there is one thing that really bugs me, there's no index in this book