Joseph Schremmer, ‘A Unifying Doctrine of Subsurface Property Rights’

ABSTRACT
This Article systematizes the law of subsurface property into a formal doctrine – the ‘fair opportunity doctrine’ – to provide a more effective legal technology for furthering important social interests in the subsurface of the earth. In doing so, the Article also addresses a broader theoretical question: how might we approach property doctrine to achieve societal interests more effectively?

First, the Article illustrates that property rights in natural resources located deep underground are in disarray. It argues that lack of coherence and intelligibility in this area hampers society’s ability to use deep subsurface resources for a variety of beneficial uses, including efficient development of oil and gas reserves and storage for renewable energy and anthropogenic carbon dioxide. Next, the Article argues the law’s central failure is the lack of formal, systematized legal doctrine to define property rights, with overreliance on functionalist standards and extra-legal considerations, such as economics, industry interests, and politics. The Article then proposes a formal method of systematizing the case law and employs it to recast the law into the fair opportunity doctrine.

Recasting the law into a formal doctrine reveals the immanent rationality, coherence, and intelligibility of subsurface property rights. It also furnishes a number of instrumental values, including predictability and transparency, that are supportive of the rule of law. The Article asserts that applying this formal doctrine would, in turn, achieve political, social, and economic benefits for society, by furnishing the predictability necessary for private actors to make greater use of the earth’s subsurface.

Finally, in synthesizing the fair opportunity doctrine, the Article develops and demonstrates the application of a method of formalizing property above and beyond the subsurface. This method furnishes a more usable and less ideological approach to property law than leading contemporary theories.

Schremmer, Joseph, A Unifying Doctrine of Subsurface Property Rights (September 6, 2021). Harvard Environmental Law Review, forthcoming, UNM School of Law Research Paper No 2021-17.

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