Over the past few months, new developments have taken place in the historic Pennsylvania Supreme Court case involving landowners’ trespass and conversion claims against an energy company based on hydraulic fracking activities. Back in November 2018, the Supreme Court of Pennsylvania agreed to hear the case to consider whether the rule of capture applies to hydraulic fracking. Since November, both parties, as well as numerous amici curiae, have filed briefs.

On April 3, 2019, the Briggs family filed its brief urging the Pennsylvania Supreme Court to affirm the Superior Court’s decision in its favor and preserve Pennsylvania’s  “centuries old concepts of land ownership, trespass and conversion law.” The Briggs compared the energy company’s fracking activity to slant drilling, claiming that the proppants of hydraulic fracturing “serve the same purpose as a drill bit invading the land.”

Previously, on January 30, 2019, the energy company also filed its brief with the Supreme Court. The energy company argued that the age-old rule of capture applies to all methods of oil and gas development, including hydraulic fracking. The company also raised numerous public policy arguments in its brief, claiming that “exposing oil and gas operators to liability for their development activities would harm Pennsylvania’s economy and increase the cost of energy.” Additional public policy concerns raised included fear of impinging landowners’ rights, burdening courts with speculative and unwieldy litigation, and overstepping the General Assembly’s legislative role.

Both parties’ briefs thoroughly discussed an almost identical 2008 Texas Supreme Court case, Coastal Oil & Gas Corp. v. Garza Energy Trust. In Coastal Oil, Justice Hecht delivered the majority opinion for the Court, which held that the rule of capture does apply to modern day fracking.

Like Texas, energy is a major part of Pennsylvania’s economy. Pennsylvania is currently the nation’s second largest gas-producing state. At least six gas industry trade groups have filed amicus curiae briefs in support of the energy company. Regardless of the decision reached, the Pennsylvania Supreme Court’s holding will no doubt set lasting precedent affecting numerous landowners and the oil and gas industry.

On April 15, 2019, the Court granted the energy company’s application to reschedule oral argument for a later date. No date has been set, but the energy company’s reply brief is due May 22, 2019.

You can see our previous post about the Superior Court’s decision in favor of the Briggs family.

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