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Charles Sartain

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Co-authors Paul Yale and Rusty Tucker

The concurrence and dissent in Briggs et al v. Southwestern Energy Production Company appears to be of little help to property owners complaining of trespass by fracking where there is no invasion of frack fluids on to the neighbor’s property. Justice Dougherty, joined by Justice Donohue, agreed with the majority that the rule of capture “remains effective in Pennsylvania to protect a developer from trespass liability where there has been no physical invasion of another’s property.” And they believed the majority correctly recognized that “if there is such a physical invasion the rule of capture will not insulate a developer engaged in hydraulic fracturing from trespass liability.”

The dissenters spent most of their time on issues of pleading and procedure, arguing that it was erroneous to suggest that Briggs didn’t allege a physical invasion. They would have affirmed the Superior Court’s disposition insofar as it vacated summary judgment and remanded it for further factual development, in particular completion of discovery on the factual question of physical invasion.
Continue Reading Pennsylvania Says No Trespass by Fracking – the Dissent

Co-authors Paul Yale and Rusty Tucker

Herein, highlights from the Pennsylvania Supreme Court in Briggs, et al. v. Southwestern Energy Production Company. The rule of capture applies to oil and gas produced from wells completed using hydraulic fracturing and precludes trespass liability for drainage from under nearby property, where the well is drilled solely on and beneath the driller’s own property and frack fluids are injected solely beneath the driller’s own property.

Why is this a big deal?

This decision is only the second application by a state supreme court of the rule of capture to hydraulic fracturing (from Texas, Coastal Oil & Gas Corp. v. Garza Energy Trust was the first). The Pennsylvania Supreme Court has reached a similar result – drainage resulting from hydraulic fracturing does not itself constitute trespass.
Continue Reading Pennsylvania Supreme Court Says No Trespass by Fracking

To our bad guys, 2019 was a year flush with hope and opportunity; it ended with recidivism, more misery from Venezuela, a charlatan, an Okie who pulled a multi-million dollar fast-one on Chesapeake and, as in years past, a peek into the darker side of the human condition.

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Perp: Justin Lane Foust.

Crime: Wire…

Co-author Ethan Wood

Merry Christmas and Happy Holidays from all of us at Gray Reed! Assuming that most of you have been good this year (stay tuned for 2019’s Bad Guys in Energy to see who hasn’t), we hope Santa brought you everything on your Amazon Wish List. Our sympathies go out to those in the oilfield services industry in Texas—it looks like you got a lump of coal. In Mesa Southern CWS Acquisition v. Deep Energy Exploration Partners the Houston Court of Appeals upended the long-held view that mineral lien waivers violate public policy. Bah Humbug!
Continue Reading Oil Field Services: What is the Status of Mineral Lien Waivers?

Co-author Kelley Clark Morris

Suing a state and its public officials is difficult because of the doctrine of sovereign immunity. There are exceptions. State of Texas v. Signal Drilling, et al. presents several of them.

The rules

The State and its agencies are immune from:

  • Suits seeking to construe or enforce contracts to which the State is a party,
  • Declaratory judgment actions,
  • Ordinary trespass to try title suits.

There are exceptions. For example:

  • Claims against a state official in his representative capacity for non-discretionary acts unauthorized by law (the ultra vires exception).
  • Claims for an unconstitutional taking of property without adequate compensation.
  • Suits to require state officials to comply with statutory or constitutional provisions.

Continue Reading No Sovereign Immunity for the Texas Land Commissioner

Co-author Rusty Tucker

In Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Company a Texas court of appeals ruled that “oil or gas” is not limited to “crude petroleum,” but includes refined petroleum products gasoline and diesel.

The easement

Texas Land’s property in Harris County is burdened by an easement obtained by ExxonMobil from Humble Oil Company in 1919 that granted the right to lay, maintain, operate, and remove a pipeline for the “transportation of oil or gas” across Texas Land’s property. The easement does not define oil or gas.

The arguments

The sole issue was the definition of oil and gas as used in the easement. Texas Land contended that “oil and gas” granted the right to transport only “crude oil” or “crude petroleum,” but not refined products. ExxonMobil argued that “oil and gas,” as used in the early 20th century, included refined products such as gasoline and diesel.
Continue Reading What is “Oil or Gas” as Used in a Pipeline Easement?

Reports on the inevitable death of the fossil fuel industry are overdone (assuming it isn’t kidnapped in the middle of the night by the next administration and murdered by litigation, regulation and executive fiat). One reason is the advance of technology to remove CO2 and methane from oil and gas activities. Some examples:

Researchers at MIT have devised a system to remove CO2 from the atmosphere efficiently. The process, called “Fordaic electro-swing reactive adsorption for CO2 capture”, should help curtail greenhouse gas emissions.
Continue Reading Reducing Methane and CO2 from Oil and Gas Operations