Trespass by hydraulic fracturing is alive in Pennsylvania. In a case of first impression in the state, on April 2, the Superior Court held that hydraulic fracturing under the land of an adjoining property may create an actionable trespass that is not precluded by the rule of capture.
In Briggs v. Southwestern Energy Production Co., 2018 PA Super 79 (Pa. Super. Ct. April 2, 2018), the Superior Court reversed and remanded a grant of summary judgment where the lower court held that the plaintiff’s claims for trespass and conversion were barred by the rule of capture. In reversing, the Superior Court held that “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.”
In Briggs, Southwestern leased oil and gas rights for a tract of land adjoining the plaintiff’s 11-acre parcel located in Susquehanna County, Pennsylvania. Since 2011, Southwestern had continuously operated gas wells on the adjacent property and had used hydraulic fracturing to extract natural gas from the Marcellus Shale formation through the wells. In 2015, the plaintiff filed suit, alleging that Southwestern committed a past and continuing trespass and had been unlawfully extracting natural gas from beneath the plaintiff’s property. Southwestern moved for summary judgment on the plaintiff’s claims, arguing that the trespass and conversion claims must fail because Southwestern had not entered the plaintiff’s property and the rule of capture bars damages for drainage of natural gas due to hydraulic fracturing. The trial court agreed with Southwestern, holding that the rule of capture precluded recovery.
In reversing the grant of summary judgment, the Superior Court reviewed the holdings of two other courts that addressed this issue: the Texas Supreme Court in Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008), and the U.S. District Court for the Northern District of West Virginia in Stone v. Chesapeake Appalachia, LLC.1 The Superior Court declined to follow Coastal Oil, which held that landowners’ claims for damages as a result of trespass where hydraulic fracturing extended under a landowner’s property were barred by the rule of capture. Instead, the court agreed with and adopted the reasoning of the dissent in Coastal Oil, as well as the holding in Stone, which both found that hydraulic fracturing is distinguishable from conventional methods of oil and gas extraction and that the rationale underlying the rule of capture does not apply when gas does not merely escape to adjoining land absent the application of hydraulic fracturing.
Although significant evidentiary issues may exist in proving a trespass by fracturing claim (and those issues were not addressed by the Superior Court), operators should be aware of the viability of this theory of trespass when they develop wells located near the boundary of unleased property.