PA Superior Court; Fracking Under Neighboring Property Is Trespassing, Legally Liable

[hatrack]

Last edited Wed Apr 4, 2018, 08:56 AM - Edit history (1)

EDIT

The Briggs family owns about 11 acres of land in Harford Township in Susquehanna County. When Southwestern Energy began operating an unconventional natural gas well on the adjacent property in 2011, the Briggs declined to lease their mineral rights to the company for development. In 2015, they filed a complaint that Southwestern was trespassing by extracting gas from beneath their property without a lease. Southwestern didn't dispute they'd removed natural gas from beneath the Briggs' land, but argued they weren't trespassing due to the "rule of capture," which says the first person to "capture" a natural resource like groundwater, gas or oil owns it, regardless of property lines.

A lower court agreed with Southwestern and issued a summary judgment in their favor, but yesterday's Superior Court opinion overturns that decision, stating that the rule of capture shouldn't apply to unconventional natural gas drilling because of key differences in the method of extraction.

"Unlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature," the opinion states. "Shale gas does not merely 'escape' to adjoining land absent the application of an external force. Instead, the shale must be fractured through the process of hydraulic fracturing; only then may the natural gas contained in the shale move freely through the 'artificially created channel[s].'"

Ultimately, the Court said, "In light of the distinctions between hydraulic fracturing and conventional gas drilling, we conclude that the rule of capture does not preclude liability for trespass due to hydraulic fracturing."

EDIT

Referencing a case in Texas where the fracking company won (Coastal Oil & Gas Corp. v. Garza Energy Trust), the Pennsylvania Superior Court noted in Monday's ruling, "we are not persuaded by the Coastal Oil Court's rationale that a landowner can adequately protect his interests by drilling his own well to prevent drainage to an adjoining property. Hydraulic fracturing is a costly and highly specialized endeavor, and the traditional recourse to 'go and do likewise' is not necessarily readily available for an average landowner." The Court also noted that applying the rule of capture to hydraulic fracturing is problematic, since it would allow companies to extract natural gas from anywhere without the need for a lease as long as they could set up a fracking well on an adjacent property.

EDIT

http://www.ehn.org/pennsylvania-fracking-trespassing-2555983611.html

[dameatball]

1. Glad to see this step in the right direction.

[C_U_L8R]

2. No milkshake for you

[elmac]

10. There Will Be Milkshake

[bucolic_frolic]

3. This was a Superior Court ruling, not the PA Supreme Court

[kag]

4. Still good news.

It sounds like the decision was thorough, and addressed other decisions pretty carefully.

I like that it took the Coastal Oil case and pretty much dismantled it. I know it won't matter much in Texas, but as precedents go it'll be tough to overturn in Pennsylvania.

Here's hoping.

[hatrack]

5. Thank you! Fixing

.

[bucolic_frolic]

6. YW You were out over your skis with enthusiasm!!

been a long time coming, sorry i had to douse the party

[mountain grammy]

7. We can only hope this holds up..

[bucolic_frolic]

8. True

though the PA Supreme Court is currently Democratic, there are federal courts.

We don't own air rights above our property. Maybe 200 feet up. The court's logic is about fluids that flow. Surely it's a valid argument for groundwater pollution. One can't poison the aquafer with impunity. EPA Superfund sites have been cleaned up and sequestered.

I would think am equally valid angle would be the pulverizing of the rock and its movement, undermining strata. There have been sinkholes in PA surrounding quarries. Tock's Island dam was scrapped because geologists believe the red shale would have been washed away and crumbled by the weight of the water in the dam.

At least there is a clear indication in this litigation that the court is thinking and using scientific data.

[LastLiberal in PalmSprings]

9. Every time I hear the word "fracking" I can't help but think of Beavis and Butthead...

"Heh-heh, he said 'fracking.'"