Pennsylvania Supreme Court Confirms Rule of Capture for Fracking Operations
Civil Litigation Update, a publication of the Pennsylvania Bar Association
In Briggs v. Southwestern Energy Prod. Co., 224 A.3d 334 (Pa. 2020) (Saylor, C.J.), the Pennsylvania Supreme Court held that the rule of “capture” remains the law in Pennsylvania for developers utilizing hydraulic fracturing. The rule of capture is a fundamental principle of oil-and-gas law holding that there is no liability for the drainage of oil and gas from under the lands of another, so long as there has been no trespass. In so ruling, the court rejected the Superior Court’s determination that the rule of capture does not apply when developers use “artificial means,” such as hydraulic fracturing, to stimulate the flow of underground natural resources.
Briggs filed suit against Southwestern Energy Production Company in 2015 and asserted causes of action for trespass and conversion related to Southwestern’s alleged extraction of natural gas from under Briggs’ land. The trial court ultimately granted summary judgment in favor of Southwestern, and held that the rule of capture barred recovery because Briggs failed to demonstrate that Southwestern physically intruded on Briggs’ property. On appeal, a two judge panel of the Superior Court reversed the trial court’s decision, concluding that the “salient litmus” in determining whether the rule of capture applies is whether the flow of oil or gas occurs naturally or artificially, and since hydraulic fracturing constitutes “artificial-means,” the rule of capture did not apply to this dispute. The Superior Court further held that summary judgment was premature because the record did not indicate whether Southwestern actually intruded on Briggs’ property.
Upon review, the Supreme Court rejected the natural versus artificial test promulgated by the Superior Court and confirmed that the rule of capture remains extant in Pennsylvania. The court further found that the Superior Court assumed, without a sufficient factual basis, that a physical intrusion of Briggs’ land had actually taken place. The court instructed that such an inquiry is a factual question that litigants should establish through expert evidence. Since the court found that there was no evidence of record to demonstrate Southwestern’s physical intrusion of Briggs’ property, the court vacated the Superior Court’s judgment and remanded to the Superior Court for review of whether Briggs’ had sustained this burden before the trial court.
While the Briggs decision clarifies that the rule of capture applies to the acquisition of natural resources through hydraulic fracturing operations, litigants asserting claims against hydraulic fracturing developers should be prepared with expert evidence to demonstrate that a physical invasion of their land has taken place.