The Incidental Environmental Agency

State oil and gas conservation agencies are the gatekeepers to oil and gas development: as the agencies charged with granting drilling permits, they decide if, when, where, and how oil and gas will be developed. As such, oil and gas conservation agencies sit on the front lines in the emerging, and increasingly irresolvable, struggle between fossil energy development and the environment. Current oil and gas conservation regulation is designed to promote development, maximize recovery of the resource, and protect the individual property rights of mineral owners. However, advocacy by environmental constituencies, including surface owners and local governments, has challenged the entrenched paradigm whereby production must be maximized at the expense of all other interests.

These efforts are pushing courts to redefine oil and gas conservation according to twenty-first century environmental values. This Article examines the emergent environmental regulation function of oil and gas conservation agencies and identifies opportunities for these agencies to regulate according to their historic mandates in a manner that is inclusive of public values.