In his article published in Law360, Don Jackson examined the key issue in Briggs v. Southwestern Energy Prod. Co., currently pending before the Pennsylvania Supreme Court. In that case, the court will determine whether a driller can be held liable in trespass for hydraulically fracturing a well drilled entirely on the driller’s own lease.
How this case plays out before the Pennsylvania Supreme Court will be closely watched by the energy industry. Don points out that hydraulic fracturing has been used for 70 years and is responsible for over half of the current U.S. oil production, and two-thirds of U.S. natural gas production.
Reaching back 60 years to the earliest state supreme court case on the issue, Don traced the history of trespass and hydraulic fracturing starting with the Texas Supreme Court’s decision in Gregg v. Delhi-Taylor Oil Co., which had suggested that hydraulic fracturing could constitute a trespass if “the induced fractures extend beyond the driller’s lease boundary.”
Flashing forward, Don examined a Texas Supreme Court decision from little more than a decade ago in Coastal Oil v. Garza Energy Trust, and a 2013 West Virginia federal court decision in Stone v. Chesapeake Appalachia LLC, , both of which involved the “rule of capture” yet reached divergent conclusions on liability. These seemingly inconsistent outcomes set the stage for the Pennsylvania Supreme Court to potentially refine the courts’ approach to this issue in Briggs.
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