On November 20, 2018, the Supreme Court of Pennsylvania issued a one-page order agreeing to consider whether the rule of capture applies to hydraulic fracturing. The Supreme Court of Pennsylvania’s review comes after the Pennsylvania Superior Court overturned decades of precedent and decided the rule of capture did not apply to fracking wells.

The Pennsylvania Supreme Court will consider a single question on appeal: “[d]oes 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?”

In 2015, the Briggs family brought suit in Susquehanna County Court alleging Southwestern Energy trespassed and converted gas from their 11-acre tract. The Briggs family claimed Southwestern Energy had used hydraulic fracturing to extract natural gas from under their property since 2011. The Briggs family’s claim was defeated on summary judgment.

In an opinion published on April 2, 2018, a two-judge panel of the Superior Court overturned decades of the state’s oil and gas law by holding hydraulic fracturing may constitute an actionable trespass. In reaching its decision, the Pennsylvania Superior Court noted the distinction between conventional reservoirs where the “gas can migrate freely within the reservoir and across property lines” compared with unconventional reservoirs where gas is trapped in tight shale formations and “nonmigratory in nature.”

In its brief, seeking the Pennsylvania Supreme Court’s intervention, Southwestern Energy argued the rule of capture had been the common law in Pennsylvania for centuries. In Southwestern Energy’s petition for appeal, the company pointed to Texas, the only state to take up the issue in the context of hydraulic fracturing, which held the rule of capture did apply. Southwestern Energy says the lower court’s ruling will throw “the law surrounding oil and gas rights into chaos.”

In response to the Pennsylvania Supreme Court’s allocatur grant, counsel for the Briggs family, Laurence Kelly, said “I’m just looking forward to presenting my client’s case in the Supreme Court.” A Southwestern Energy spokesman said “[w]e appreciate the court’s thoughtful decision to review this ruling, especially given the case’s potential to negatively impact Pennsylvanians who depend on natural gas for royalty payments, jobs, and affordable energy. Bringing legal clarity and certainty to this potential far-reaching matter—while avoiding pitting neighbor against neighbor in costly and speculative legal disputes that could unnecessarily overburden our courts—are top priorities for Southwestern Energy.”

No dates have been set for briefs or oral arguments before the Supreme Court.

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