On April , the Pennsylvania Superior Court stated it is possible that hydraulic fracturing resulting in natural gas extraction from adjoining land may constitute a claim for trespass.
In Briggs v. Southwestern Energy Production Company, a two-judge panel questioned the common understanding that the rule of capture applies to current shale drilling operations.
The defendant, Southwestern Energy, hydraulically fractured a well on land adjacent to the Briggs property, for which the company did not have a lease. The Plaintiff filed a complaint asserting claims of trespass and conversion. The trial court granted Southwestern’s motion, agreeing that the rule of capture applied.
The case was appealed to the Superior Court, with the Plaintiff stating there were significant differences between fracking and the conventional process of drilling into a reservoir of fluids, and gas in shale formations would be trapped if not forced out by hydraulic fracturing methods.
The Superior Court held that, in Pennsylvania, “the rule of capture does not preclude liability for trespass due to hydraulic fracturing. Therefore, hydraulic fracturing may constitute an actionable trespass where subsurface fractures, fracturing fluid and proppant cross boundary lines and extend into the subsurface estate of an adjoining property for which the operator does not have a mineral lease, resulting in the extraction of natural gas from beneath the adjoining landowner’s property.”
The court reversed and remanded the case, to determine if the Defendant’s operations had in fact resulted in subsurface trespass, noting it could be difficult to prove.
Ross Pifer, Director of the Center for Agricultural and Shale Law, stated that there are two critical flaws that will muddy the waters in the Superior Court’s decision.
One is that the court draws a distinction between hydraulic fracturing and conventional gas drilling, when basically all wells in the Commonwealth, both conventional and unconventional, are hydraulically fractured.
The court has called shale gas ‘non-migratory in nature’ when in fact shale gas does naturally escape and gather in shallower rock formations over eons of time.
“I think this case could have an impact on shale development because it’s opening the door for trespass liability. There still would have to be proof of trespass, but this court is saying that it’s possible for a company to be held liable for trespass,” said Pifer.
Join Pifer as he discusses in detail the law, rule of capture, and what changes may mean for landowners and industry.
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