Pennsylvania’s top court will hear oral arguments on Sept. 12 in a case being closely watched by gas drillers and industry associations, as well as land owners.
“Rule of capture” is a long-established legal principle used in conventional well drilling. It holds that a property owner can drill a well and extract oil or gas, even if it comes from beneath another owner’s land without that person’s permission. It is based on the fact that gas and oil traditionally were found in underground reservoirs and could migrate freely across property lines.
In Briggs vs. Southwestern Energy Production Co., attorneys for the Briggs family argued that rule of capture does not apply to unconventional wells because “natural gas contained in shale formations would remain trapped there forever if not for forced extraction through hydraulic fracturing,” according to the Superior Court opinion in the case.
The Briggs family owns 11 acres of property in Susquehanna County and Southwestern had leased adjacent land and drilled gas wells there. Southwestern did not lease the Briggs’ land. In 2015, the Briggses sued for trespass, arguing that Southwestern had been unlawfully extracting gas from beneath their property.
Southwestern argued that the Briggses claim was barred due to the rule of capture. In 2017, a trial court agreed with Southwestern and dismissed the lawsuit. The Briggses appealed to Superior Court, which said that previous cases involving rule of capture don’t apply to unconventional wells.
“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. Therefore, hydraulic fracturing my 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 Superior Court opinion states.
In November 2018, the state Supreme Court agreed to hear the case, but focused the issue more narrowly. The Supreme Court order states the issued to be decided is: “Does the rule of capture apply to oil and gas produced from wells that were completed using hydraulic fracturing and preclude trespass liability for allegedly draining oil or gas from under nearby property, where the well is drilled solely on and beneath the driller’s own property and the hydraulic fracturing fluids are injected solely on or beneath the driller’s own property?”
The court’s ultimate determination on this question will ultimately impact property and mineral rights owners and the gas drilling industry for years to come.