A Brave ReNEWable World:
The Accommodation Doctrine and Renewable Energy Projects

What’s green, fuzzy, has four legs, and can hurt you if it falls out of a tree?  The Accommodation Doctrine. Okay, so maybe that is not the standard answer to the age-old riddle (the answer is “a pool table”), but unawareness of the Accommodation Doctrine can still harm renewable energy developers and their operations. As discussed herein, in some situations, the Accommodation Doctrine provides protection for renewable energy developers from conflict with mineral developers. However, if the renewable energy developer cannot satisfy the prongs of the Accommodation Doctrine or otherwise does not have an agreement with the mineral owner (or its lessee), the renewable energy developer can be forced to abandon its surface operations in favor of new oil and gas drilling operations on the same land, even after years of operations and a large amount of capital investment in the project. To provide peace of mind and protect against lost time and investments, it is imperative that renewable energy developers consider the Accommodation Doctrine and its pitfalls in their planning process. 

In most states, land ownership is divided into mineral and surface estates. Oil and gas operators obtain leases from the mineral owner, and renewable energy developers obtain leases from the surface owner. Generally, the mineral estate is the “dominant” estate, and the mineral owner and its lessee are allowed to use the surface to access the minerals without permission from the surface owner or surface lessee.  Thus, to provide surface owners some form of protection regarding the use of their lands, many oil and gas producing states, such as Texas, New Mexico, Colorado, and West Virginia, have some form of legislative or judicially recognized surface owner protection laws, often called “Accommodation Doctrines.”    

The protections afforded by the Accommodation Doctrine also apply to renewable energy developers who have leased from the surface owner. The Accommodation Doctrine was first adopted by Texas in 1971 in Getty Oil Company v. Jones, but further developed through the years and requires a mineral developer who is beginning or planning to begin oil and gas operations on the surface to “reasonably accommodate” an existing surface use when:

(i)  the mineral developer’s use or planned use of the surface completely or substantially impairs the existing surface use;
(ii) there is no reasonable alternative method available by which its existing surface use can be continued; and
(iii) the mineral developer has other reasonable means of obtaining production available to it that will not interfere with the existing use of the surface. 

Although the prongs read simply enough, applying the Accommodation Doctrine is difficult to predict and requires answering fact-intensive questions and a case-by-case judicial determination. Our renewable energy clients simply do not have time for that. Instead, they want reassurance that they will not be required to relocate their operations because of future drilling for oil and gas. Therefore, we advise our renewable energy clients to work to negotiate a Surface Use Agreement, JV, or Accommodation Agreement with the mineral owner or its lessee early on in their development process to avoid finding themselves in an Accommodation Doctrine fight.

RR&A’s team has the experience you need to determine both surface and mineral ownership on your development site and draft agreements to bring certainty to your development plans. Contact RR&A today so we can help accommodate your planned renewable energy operations.

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Matt Dishong

Matt is a Senior Associate at R. Reese & Associates and part of the Land and Title team. To learn more about Matt, visit his attorney page.

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