When is subsurface drilling a trespass in Pennsylvania?

by Ryan Hamilton

Unlike other minerals, natural gas is fugitive meaning it moves through the subsurface based on changes in pressure. Pennsylvania’s rule of capture permits a well operator to drain natural gas from a common reservoir under an adjacent property, even absent a mineral lease. In the context of unconventional shale gas wells using hydraulic fracturing, however, the Pennsylvania Superior Court recently decided that fractures crossing boundary lines are an unlawful trespass.

In November of 2015, the Briggs family filed suit against Southwestern Energy Production claiming the operator unlawfully extracted natural gas from beneath their 11 acres. The Briggs argued that, despite the lack of physical intrusion, Southwestern’s forced extraction of natural gas through hydraulic fracturing made it possible to identify which parcel provided the source of recovered gas. Southwestern argued the direction of fractures cannot be controlled and if the company did recover gas from beneath the Briggs’ property, their actions were permitted by the rule of capture.

This April, the Pennsylvania Superior Court issued a decision in the Briggs’ case explaining that engineers design hydraulic fracturing operations by selecting injection pressures and volumes based on site-specific geologic data and can estimate the length fractures will extend from the well. Further, “[u]nlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature… Shale gas does not merely ‘escape’ to adjoining land absent the application of external force.” Briggs v. Southwestern Energy Prod. Co., 184 A.3d 153 (Pa. Super. Ct. 2018).

The Court found that in light of the differences between hydraulic fracturing and conventional gas drilling, 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...” Briggs, 184 A.3d at 163-164.

The Court sent the case back to the trial court for the Briggs to develop evidence of fractures crossing boundary lines and damages. In early July, however, Southwestern petitioned the Pennsylvania Supreme Court arguing the decision departs from the time-honored rule of capture and threatens to disrupt the industry. To date, the PA Supreme Court has not decided whether to hear the appeal.

For more information about how your rights and property may be impacted by natural gas extraction, contact attorney Ryan Hamilton at (412) 904-2774.