In Briggs v. Southwestern Energy Production Company, 224 A.3d 334 (Pa. 2020), the Pennsylvania Supreme Court considered whether the rule of capture immunizes an energy developer from liability in trespass when the developer uses fracturing on the property it owns or leases and captures gas from a neighboring property.
In vacating the Superior Court’s opinion, the Supreme Court held that the rule of capture may be applied in hydraulic fracturing scenarios and a plaintiff alleging trespass by an invasion of property must aver something more than mere drainage of minerals from the subject property to bring a viable claim. In addressing what constitutes “something more,” the Court explained that “the plaintiff must use at least some words alleging physical intrusion – and not merely by inference based on generalized characteristics of a particular drilling method…”
While the Court provided clear guidance on the narrow question at issue, the Court did leave open the question of whether a subsurface intrusion into boundary lines several miles beneath the surface could ever be an actionable trespass, similar to how airplanes travel in privately owned airspace without committing trespass.
Please contact your Metz Lewis relationship attorney or a member of our Oil and Gas team if you have any questions or wish to discuss.
This post was written by Brian Must, Josh Baker and Alison Viola
