Last November the Pennsylvania Supreme Court agreed to hear a case, Briggs v. Southwestern Energy, that is hands-down the most important court case to ever happen regarding the Marcellus Shale in PA. And no, we’re not exaggerating. A blizzard of briefs by Southwestern and those supporting Southwestern were filed in February (see “Rule of Capture” Briefs Filed w/PA Supreme Court in Briggs Case). On Wednesday, it was the Briggs’ turn to file a brief, one in which they ask the Supremes to stop application of the 150 year-old “rule of capture” in PA when it comes to shale wells.
A year ago, in April 2018, MDN brought you the news that Pennsylvania Superior Court had handed down a decision in the Briggs case that has the power to greatly restrict, perhaps even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well and PA “Rule of Capture” Case has Power to Limit Marcellus Drilling).
The issue, in brief, is that the PA Superior Court decision disallows using the age-old principle called the “rule of capture” when it comes to shale drilling and fracking in PA. Southwestern Energy successfully argued in a lower court that the odd crack here and there that may slip under a neighbor’s property from fracking is permissible. The neighboring landowner (the Briggs family), not signed with Southwestern, appealed that decision to Superior Court and won. Southwestern then appealed the case to the PA Supreme Court and the court agreed to hear the case (see PA Supreme Court Agrees to Hear Briggs “Rule of Capture” Case).
We’ve written extensively about how this decision may affect nearly every landowner, signed or not, in shale regions of the state. Click here to read our explanation of the rule of capture and why this case is important for every single landowner (and non-landowner) in PA.
Below is a summary of the Briggs’ argument, followed by the brief they filed on Wednesday. We will continue to monitor this critically important case.
A Pennsylvania family urged the state’s highest court Wednesday to find that the so-called rule of capture, a 150-year-old legal doctrine that shields drillers from liability when a well taps oil and gas pockets that cross multiple properties, should not apply to hydraulic fracturing.
A Susquehanna County family argued in a brief that key differences between conventional drilling and fracking, which involves the injection of pressurized fluids to crack rock formations and free oil and gas deposits trapped inside, meant they should be able to pursue trespassing claims against a Southwestern Energy Corp. unit over a well drilled and fracked on a property next to theirs.
They urged the justices to shoot down arguments from Southwestern Energy, referred to as SWN in the briefing, aimed at applying the rule of capture to fracking.
“SWN is asking your honorable court to recognize a dramatic and expansive interpretation of the rule of capture to allow [the company] to disregard the centuries-old concept of land ownership, trespass and conversion law and provide [it] a virtual ‘privilege to plunder’ natural gas from as many adjoining landowners as can be reached by the hydraulic fracturing process,” the family said in its brief.
The appeal to the justices comes after the Superior Court revived claims from the Briggs family, who own an 11-acre property, seeking damages after the family alleged that fractures from a well drilled on a neighboring property had allowed Southwestern Energy to tap into gas that was trapped beneath their land
The opinion said the case was only the third in which a court in the United States had weighed in on whether the rule of capture, which has been considered hornbook law for more than a century, applies to fracking.
But the Superior Court ultimately concluded that the differences between conventional drilling and hydraulic fracturing, including the possibility that fractures could cross property lines below ground, were significant enough that the rule could not apply to the latter.
The Pennsylvania Supreme Court agreed to hear the case in November.
In a brief filed in January, Southwestern Energy argued that the Superior Court’s ruling had upset the industry’s standard expectations about where they could drill and what activity might or might not subject them to liability.
The company argued that the rule of capture had previously applied to other methods of mineral extraction that involved the creation of subsurface fractures, including mechanical vacuum pumping and blasting.
But the Briggs family argued that the injection of foreign material, known in the industry as proppant, into rock formations as part of the fracking process was the same as a drill bit digging into their property.
“It is the proppants that serve the same purpose as a drill bit invading the land of the Briggses constituting trespass,” the family argued.*
*Law360 (Apr 4, 2019) – 19th Century Rule Can’t Cover Fracking, Pa. Justices Told
Although Briggs v. Southwestern is a serious case and we in no way want to detract from its seriousness, all this talk of the Supremes and “stopping” conjures up for us memories of the iconic song sung by the incomparable Supremes, Stop in the Name of Love. Enjoy!
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