For over a century, our governments failed to regulate lead as it entered almost every facet of our consumer market and infrastructure. Despite long-standing knowledge of the risk of lead poisoning, lead was used for its versatility and low-cost. New studies estimate that at least half of the United States population was exposed to adverse lead levels during early childhood. While statutes and regulations have been put in place to prevent the continued use of lead in infrastructure and some products, few hold anyone responsible for affirmatively removing lead hazards.
Fair Shake Environmental Legal Services filed an appeal, on behalf of its clients The Sierra Club, Earthworks, Center for Biological Diversity, and FreshWater Accountability Project, challenging a key permit for a massive proposed plastics facility known as an “ethane cracker” in Belmont County. The plant is part of the industry’s push to steeply increase U.S. plastic production.
On Jan 9, 2019 the Pennsylvania Environmental Hearing Board (EHB) ruled in favor of the Clean Air Council saying that the Pennsylvania Department of Environmental Protection (DEP) broke the law when it issued Sunoco permits to build a Natural Gas Liquids facility at Marcus Hook. But what we, at Fair Shake, find most interesting is the language that they used in this decision, which sends a clear message: No more egg-slicer permitting.
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.
