Annual Institute on Mineral Law

Volume 56 The 56th Annual Institute on Mineral Law Article 13

4-2-2009 Local Land Use Regulation of Oil and Gas Development: Pumpjacks and Preemption Bruce M. Kramer

Follow this and additional works at: https://digitalcommons.law.lsu.edu/mli_proceedings Part of the Oil, Gas, and Mineral Law Commons

Repository Citation Kramer, Bruce M. (2009) "Local Land Use Regulation of Oil and Gas Development: Pumpjacks and Preemption," Annual Institute on Mineral Law: Vol. 56 , Article 13. Available at: https://digitalcommons.law.lsu.edu/mli_proceedings/vol56/iss1/13

This Paper is brought to you for free and open access by the Mineral Law Institute at LSU Law Digital Commons. It has been accepted for inclusion in Annual Institute on Mineral Law by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Kramer: Local Land Use Regulation of Oil and Gas Development: Pumpjacks a

Local Land Use Regulation of Oil and Gas Development: Pumpjacks and Preemption Bruce M Kramer Maddox Professorof Law Emeritus Texas Tech University School of Law Lubbock, TX

Of Counsel McGinnis, Lochridge & Kilgore Houston, TX I. Introduction Today, the regulation of oil and gas exploration and production ac- tivities by substate governmental units has reemerged after a lengthy qui- escent period.' Oil and gas activities obviously take place where the oil and gas is located. Historically that has been in rural areas, although there are clear exceptions. 2 Population growth and urban sprawl has brought the citizenry to where the oil and gas wells are. People who move to the country not only want urban amenities, they also want the "peace and quiet" that they believe exists in the idyllic rural surround- ings. One does not want to exchange the noise of the bus or emergency medical vehicle for the noise of the "pump jack" and the . An additional factor causing this increase in substate unit regulation is the expansion of land use powers from municipalities to counties. Histori- cally, municipalities were the substate units that engaged in land use regulation. Counties, the usual provider of governmental services in the rural regions of the United States, were often the stepchild of substate units lacking most of the traditional police powers exercised by the cities. In addition, counties were often left out of the home rule movement that

transformed local governmental law in the 2 0th Century. As will be ex- plained later, the concept of home rule gives substate units substantially greater freedom to exercise the t of home rule gives substate units sub- stantially greater freedom to exercise the police power than had existed prior to the adoption of constitutional and statutory home rule regimes. All of these developments now make the understanding of local land use regulatory mechanisms important for all of the interested parties in oil

Throughout this paper I will be referring to either substate or local governmental units. For purposes of this paper those terms refer to any governmental unit such as a county, parish, borough, township, city, regional special district or the like. 2 Various Kansas municipalities and Oklahoma City have been regulating oil and gas operations within their jurisdictions starting in the 1920s. American Bar Association, Legal History of Conservation of Oil and Gas 55-56 (1938).

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Published by LSU Law Digital Commons, 2009 1 Annual Institute on Mineral Law, Vol. 56 [2009], Art. 13

and gas development, royalty interest owners, working interest owners and surface owners. II. Primer On Local Governmental Zoning Powers Land use regulation through zoning, planning and subdivision regu- latory mechanisms has a reasonably long history.3 New York City en- acted the first comprehensive zoning ordinance in 1916. But it was two subsequent events that led to the widespread use of zoning throughout the urban areas of the Jnited States. T