I prepared this post before Ida. It might now be perceived as cynical, or unsympathetic to the plight of those affected in South Louisiana and the Northeast. Is the intensity of hurricanes exacerbated by global warming? Some say it is; some say it isn’t. Regardless, what to know and do about climate change
Co-author Brittany Blakey
After a trial court order, two appellate opinions, a dissent, and another appellate opinion, the tension between a well operator and an adjacent mineral owner over whether hydraulic fracturing can constitute a subsurface trespass in Pennsylvania has, for the most part, been resolved. In Briggs v. Southwestern Production Company, several points of Pennsylvania law have been confirmed:
- Well operators may use hydraulic fracturing to drain oil and gas from under another’s property, at least in the absence of physical invasion.
- The rule of capture does not preclude trespass liability if the operation creates a physical invasion.
- The mineral owner’s complaint must specifically allege that the operator engaged in horizontal drilling that extended onto their property or that the operator propelled frack fluids and proppants across the property line.
Last week’s discussion of the Pennsylvania Grand Jury’s report on alleged failures in enforcement of hydraulic fracturing is worthy of a follow-up. Here, combined into one document, is the Grand Jury’s report, the Department of Environmental Protection’s response (beginning on page 112) and the Department of Health’s response (beginning on page 165).
The Grand Jury recommends
Expand no drill zones, stop the “chemical cover-up”, regulate all pipelines, add up the air pollution sources, transport toxic waste more safely, deliver a real public health response, end the “revolving door”, and use the criminal laws.
The DEP responds
The report is unreliable, legally and factually inaccurate, not informed by applicable law or facts, relies on undocumented assertions, “does the public a disservice”, and the Attorney General failed to give the Grand Jurors accurate information. This, from a Democratic governor.
The former Secretary defends the department
A response from Michael Krancer, Secretary of the DEP from 2011 until 2013, says:
There is “new news” and there is the same-old-same-old. Today is mostly the latter but it seems more “out there” than in it used to be.
The Pennsylvania Attorney General convened a grand jury that slammed regulatory failures in Pennsylvania gas drilling and recommended setbacks that would effectively destroy the ability to develop shale resources. …
Is the world hurtling irreversibly toward incinerating, extinction-causing, fossil-fuel induced destruction while we’re doing nothing about it? Maybe not, if you consider overlooked and ignored sources of information.
We You will always have Paris
Despite bailing out of the Paris Climate Accord, the United States led the world in reducing CO2 emissions in 2019. …
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
In Frederick v. Allegheny Township Zoning Hearing Board, et al, the Pennsylvania Commonwealth Court affirmed a local zoning ordinance allowing oil and gas operations in all zoning districts in the Township as long as they satisfied enumerated standards that were designed to protect the public health, safety and welfare of the citizenry.
Facts and Findings
CNX received a permit to drill a well. The ordinance imposes a 1,000 foot setback and prescribes notice requirements and operational limitations. Citizens owning neighboring tracts complained that the well was not compatible with agricultural and residential use, complaining about noise from pad site preparation and drilling activities.
The objectors did not challenge the Zoning Board’s fact findings. That was either a tactical mistake or a lost cause. One can’t tell from the opinion. The court noted these findings, among others:
- This is an area that has historically had gas production. There are 242 conventional gas wells in the Township, some of which employ hydraulic fracturing.
- One farm already has three gas wells plainly visible to persons driving by the property.
- Nothing will be visible to the neighbors after the well has been drilled and completed.
- The Zoning Board rejected as not credible the testimony of several experts sponsored by the objectors.
Co-author Chance Decker
In Murphy Exploration & Production Co. — USA v. Adams the Texas Supreme Court held that an offset well clause in an oil and gas lease did not require the lessee to drill wells calculated to protect against drainage. Four dissenting justices believed the majority disregarded the well-established meaning of “offset well” used in the oilfield for decades.
Continue Reading Texas Supreme Court Redefines an Offset Well Clause
Briggs v. Southwestern Energy is another way to say “chaos” in Pennsylvania. The Superior Court ruled that fracking may constitute a trespass when subsurface frac-fluid and proppants cross boundary lines and extend into the subsurface estate of an adjoining property owner from whom the operator does not have a mineral lease, resulting the extraction of natural gas from beneath the adjoining property.
Continue Reading Trespass by Fracking Recognized in Pennsylvania