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Why has drilling boomed in America, while it struggles in Europe?

‘Whoever owns the soil, it’s theirs up to Heaven and down to Hell.” So goes the ancient common-law principle. Today, however, almost no major country recognizes full subsurface private property rights, except for the United States.

We mention this because that blessing of American jurisprudence helps explain one of the few bright patches in the Obama economy—the booming production of shale gas and, increasingly, oil. The U.S. ranked 159th in GDP growth last year. But in natural gas production, it’s now No. 1.

How did that happen? Partly it’s the luck of geology, though plenty of other countries have abundant shale resources. Partly, too, it’s American technological leadership in developing hydraulic fracturing (fracking) and horizontal drilling. But those techniques are now widely understood the world over.

What has given the U.S. its edge is that the early development risks were largely borne by small-time entrepreneurs, drilling a lot of dry holes on private land. These “wildcat” developers were gradually able to buy up oil, gas and mineral leases from private owners while gathering enough geological data to bring in commercial producers.


A natural gas site in Fort Worth, Texas

Take Texas’s Barnett Shale, a particularly tight rock formation that had been eluding speculators for years. Houston-based Mitchell Energy & Development Corp. spent the 1980s refining horizontal drilling techniques, and by 1996 it was producing Barnett shale gas.

Jason Dvorin, a partner in the Dallas-based oil and gas leasing and exploration firm Dvorin LLC, recounts that when his father Sanford heard of Mitchell’s success, he decided to go all-in, having also spent years chasing Barnett shale. In 1997, father and son began buying individual leaseholds for mineral, oil and gas rights at $25-$50 an acre. By the time they sold their productive leases at the end of 2007, Mr. Dvorin recalls, they were going for as much as $30,000 per acre. “Even today, in a depressed market, operators are still paying $1,500 an acre.”

Meantime, some of the property owners who leased their mineral rights to companies like Dvorin have received royalty checks, typically worth at least 12.5% of production value. That’s encouraged further leasing and exploration, generated popular momentum for fracking, and brought development to previously depressed regions such as western Pennsylvania and the Bakken area of North Dakota.

Now compare this to Europe, which sits on an estimated 639 trillion cubic feet of shale gas yet remains heavily dependent on Russian imports. The governments of France and Bulgaria have banned fracking on dubious safety grounds, with nary any pushback from their publics. That might not be the case if French farmers, for example, were able to profit from the riches underneath their terroir.

Countries such as Poland and Great Britain are willing to develop their shale potential. Yet in both places the absence of private mineral rights has delayed exploration and production.

In 2008, U.K.-based Cuadrilla Resources obtained a license to explore underneath some 297,000 acres of Lancashire countryside. It has since been completing its tests, negotiating surface-use agreements with landowners, and wading through the planning, health and safety approvals it needs before it can finally apply for a license to produce and commercialize the gas. Those final negotiations will take at least a year, once they commence in mid-2013.

As for Poland, Exxon Mobil recently abandoned a large regional concession there when its two test wells didn’t meet expectations. For a company of Exxon’s size, it may not be profitable to spend time drilling a lot of dry wells in Poland when it can focus on more established and “de-risked” prospects elsewhere. But smaller developers might be willing to take risks and explore the geology a little more thoroughly—if only they could gain private title to the resources.

In time, perhaps even the French will recognize their lost opportunity and lift their ban on fracking. But the deeper lesson is that this is a revolution that came about not through government planning or foresight, but through a combination of individual risk-taking and private property. Europeans could benefit by doing more to broaden the latitude for both.