On April 2, the Pennsylvania Superior Court held that hydraulic fracturing
that results in the extraction of natural gas from adjoining land may
constitute a claim for trespass.
In Briggs v. Southwestern Energy Production Company, 2018 PA Super 79 (Apr. 2, 2018) ,
Defendant Southwestern Energy Production Company utilized the hydraulic
fracturing method to extract natural gas through a well on land adjacent to
the Plaintiffs’ property, for which the company did not have a lease. As a
result, the Briggs family filed a complaint asserting claims of trespass
and conversion. Cross-motions for summary judgment eventually were filed,
and the trial court granted Southwestern’s motion, agreeing that the rule
of capture applied and precluded recovery by the Plaintiff-landowners. The
case turned on whether fracturing fluid and proppant crosses the imaginary
horizontal plane of the subsurface of a property boundary.
On appeal, the Superior Court reiterated Pennsylvania’s recognition of the
rule of capture, but acknowledged that the rule’s application to hydraulic
fracturing was an issue of first impression in the commonwealth. For
guidance, the court looked to the only other cases to have addressed this
issue, Coastal Oil & Gas Corp. v. Garza Energy Trust, 268
S.W.3d 1 (Tex. 2008), and Stone v. Chesapeake Appalachia, LLC, No.
5:12-CV-102, 2013 WL 2097397 (N.D.W.Va. Apr. 10, 2013), order vacated, 2013 WL 7863861 (N.D.W.Va. July 30, 2013). The
Pennsylvania court agreed with the rationale in the Stone decision
and Coastal’s dissent that, given the practical differences
between conventional methods of extraction and hydraulic fracturing and
between the respective positions of oil and gas producers and landowners,
the rule of capture did not protect oil and gas producers employing the
hydraulic fracturing method.
Adopting this line of reasoning, 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 remanded the case to determine whether
Southwestern’s operations had in fact resulted in a subsurface trespass to
the Plaintiffs’ property.
Trespass litigation likely will increase with the Briggs decision,
as an issue once framed for summary judgment based on the rule of capture
is now fodder for fact-intensive discovery and expert opinions regarding
the subsurface migration of fracturing fluid and proppant.