Journal of Energy, Natural Resources, and Environmental Law
A pragmatic approach to oil and gas law is the most effective way for the judiciary to address arising issues in that area of law. As in the Great Era of the Oil and Gas Industry, new and recurring questions will continue to confront courts in this next era of oil and gas jurisprudence. Because policies have shifted and technology has evolved, it is imperative to reassess the approaches used by courts in answering these questions. In order to respond effectively to questions posed by shifting policies and new technologies in the next era of oil and gas jurisprudence, courts should adopt the pragmatic approach exemplified in opinions such as Ohio Oil Co. v. Indiana and Railroad Commission v. Manziel. These opinions echo the views of many Great Era commentators by recognizing the need for a special jurisprudence designed to respond to the unique realities of oil and gas production.
The Great Era of the Oil and Gas Industry has ended. As politics continue to stymie legislative resolutions to controversies caused by shifting policies and new technologies, the burden will continue to fall upon the courts. To avoid the counterproductive effects of approaches to decision making that fail to address the role of prevailing policy, judges should adopt a pragmatic process. This process must first identify goals and policy conflicts. Second, it must assess the effects of available courses of action. Finally, it must adopt standards or rules to clarify the relative rights of property owners and developers. Indeed, clarifying rights and liabilities through legislation and judicial decisions should be the ultimate goal for the next era of oil and gas jurisprudence.
Laura H. Burney, A Pragmatic Approach to Decision Making in the Next Era of Oil and Gas Jurisprudence, 16 J. Energy Nat. Resources & Envtl. L. 1 (1996).