The Oklahoma Bar Journal May 2024

the authoritative English jurist Sir William Blackstone – to better understand the concept of the police power and how it is meant to fit into the greater American polity, to wit: “By the public police and oecon omy I mean the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family , are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, indus trious, and inoffensive in their respective stations.” 10 Mr. Blackstone’s deployment of the metaphor of a well-governed family is no accident. As Mr. Blackstone well knew, 11 the very idea of econ omy comes to us from the ancient Greeks, for whom economy meant “government of the household for the common good of the whole family.” 12 Hence Mr. Blackstone’s odd-to-modern-eyes spelling of the word with an “o” up front: oecon omy, from the Greek oikos , meaning house, and nomos , meaning law. Thus, the government’s power over police and economy is essen tially and inextricably paternalis tic, albeit in a rather more positive sense of the word than that to which the modern ear is accus tomed; the police power is a power that, according to the very most fundamental ideas that underpin Western civilization, ought ever to be directed toward the better ment of the common good, in the same way a father looks after the well-being of his entire family. 13 The Corporation Commission was created by Article 9 of the Oklahoma Constitution to exer cise the state’s police power – the power to regulate private industry for the public good.

properly enacted statute that set maximum rates for the storage and transportation of grain. 3 In upholding Munn & Scott’s convic tion, the court held that the state of Illinois had properly exercised its inherent police power to regulate the use of private property when such use will be “of public conse quence, and affect the community at large.” 4 Chief Justice Morrison Waite – a former corporate and railroad lawyer 5 – wrote for the court, stating, “When one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good , to the extent of the interest he has thus created.” 6 Importantly, Justice Waite found support for the court’s posi tion in the very foundations that underlie all human society and governance. The social contract, he wrote, implicitly authorizes “the establishment of laws requir ing each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government and has found expression in the maxim sic utere tuo ut alienum non laedas, ” the Latin maxim meaning that one ought not use that which is his in such a way as to harm that which is someone else’s. 7 “From this source,” writes Justice Waite, “come the police powers.” 8 For the founding generation of the early republic who laid the foundations of our legal traditions and political culture – most of it imported wholesale from Britain – the terms police and economy were effectively interchangeable. 9 As is ever the case, we can look to the same place the founders looked –

the advent of horizontal drilling – have upended some of his basic presuppositions, which warrants reconsideration of his core con clusions. This article will revisit the landscape of forced pooling in Oklahoma, see where Mr. Nesbitt’s piece remains relevant and explain where it’s in need of an update. But first, let us consider a question, the answer to which will form the foundation for the rest of this article: WHY DOES THE CORPORATION COMMISSION REGULATE OIL AND GAS IN THE FIRST PLACE? The mayhem in the early years of oil and gas production in Oklahoma was aptly captured by one historian describing the scene after an oil field was discovered under Oklahoma City in 1928: “wild wells, floods of crude, and almost uncontrollable flows of natural gas.” 1 It is this state of affairs that the Corporation Commission was tasked with bringing under control – massive overproduction, barrels of wasted oil, mere black sludge on the ground, some untold amount left unrecoverable beneath the surface and natural gas escap ing freely into the air. The power of the Corporation Commission to regulate the exploitation of subsurface oil and gas deposits is premised upon the United States Supreme Court’s 1877 decision in Munn v. People of State of Illinois , in which the court recognized the sovereign authority of state governments to regulate private industry within their borders when that industry is of a kind that affects the pub lic interest. 2 Munn & Scott had been found liable for violating a

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

8 | MAY 2024

THE OKLAHOMA BAR JOURNAL