The fracking legal battle is fractured, and filled with inconsistencies. With the development of new technologies for hydraulic fracking, including horizontal fracking, courts often times disagree with each other in how to apply the law.
This has led at least one academic to examine exactly what in the common law can be applied to fracking. This makes sense to me because many of the legal claims being discussed now are rooted in the common law: preemption, police powers, trespass (subterranian), easement, etc.
Modern American property law can be traced back to Norman feudalism in the 11th century. Many of the terms used in modern American property law are antiquated and derived from that period in England’s history. Unlike other areas of law that are relatively new, such as privacy law, which was advocated as a formal right until the late 19th century. See Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890-91). This makes the common law, while not definitive to the new problems, important in assessing how courts have acted previously.
To a more limited extent, the [fracking] battle will also be waged on the common law front as landowners seek to block or discourage hydraulic fracturing employing trespass and related claims.
Regarding existing shale development, trespass claims can have a direct effect on the use of hydraulic fracturing. Because it is not possible to control the precise location of fissures created by the fracturing process, imposing liability for fissures that cross property boundaries would cause operators to limit their use of hydraulic fracturing and may, ultimately, cause them to abandon the process altogether-which would mean abandoning development of most shale formations.
This article explores the three common law dimensions of hydraulic fracturing: property, tort, and contract. Although there is a limited amount of ‘law’ on hydraulic fracturing, sufficient case law and commentary exist to frame and evaluate the analysis likely to guide development of a common law of hydraulic fracturing.
— David. E. Pierce, Developing a Common Law of Hydraulic Fracturing, 72 U. Pitt L. Rev. 685.