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Pennsylvania Superior Court Fractures Long-Standing Rule of Capture

Energy and Environmental Trends Watch

Citing distinctions between hydraulic fracturing and conventional gas drilling, the Pennsylvania Superior Court held on April 2, 2018, in Briggs v. Southwestern Energy Production Company that the rule of capture does not preclude liability for trespass due to hydraulic fracturing, reversing a summary judgment that had been granted by the trial court in favor of Southwestern Energy Production Company. The Briggs ruling exposes operators to potential tort liability where subsurface fractures, fracturing fluid, and proppant cross boundary lines and extend into the subsurface estate of an adjoining property, resulting in the extraction of natural gas from the adjoining property.

The case has been remanded to the trial court to afford the adjoining landowners the opportunity to fully develop their trespass claim and a conversion claim that the trial court had also concluded was barred by the rule of capture. In a further development to this case, Southwestern Energy Production Company filed with the Pennsylvania Superior Court an application for reargument en banc. Absent reversal or modification of the ruling in the appellate courts, Briggs will be binding precedent that requires trial courts to permit subsurface trespass and conversion claims for hydraulic fracturing to move forward.

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