Fracking Trespass Case (Rule of Capture) Still Reverberating in PA

Last week MDN brought you the news that the Pennsylvania Superior Court handed down a decision that has the power to greatly restrict, perhaps even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well and PA “Rule of Capture” Case has Power to Limit Marcellus Drilling). The issue, in brief, is that last week’s Superior Court decision disallows using an age-old principle called the “rule of capture” when it comes to shale drilling and fracking. It opens the door to a myriad of frivolous lawsuits claiming that a fracture, a crack created during fracking, is draining gas from a neighbor’s property without justly compensating the neighbor for the gas. Was the court’s decision a big deal? Or was is not such a big deal? We’ve seen stories appear every day since the decision, some indicating the decision is monumental in scope and impact–others saying meh, not so big after all. Which is it? We still believe the issue turns on how far cracks extend out from a wellbore during fracking–and whether you can accurately measure the distance of such fractures. If the cracks extend just a few hundred feet, the court decision is not a big deal. Most drillers stay at least 350 feet from the boundary line when drilling a well–meaning the cracks that drain gas do not extend to neighboring properties. However, if the cracks, the fractures, extend out more than a few hundred feet, say more than 300 feet, that’s a problem. Southwestern Energy responded in the lawsuit that IF their cracks had intruded (trespassed) under the boundary line, it would fall under “rule of capture”–the legal principle of he who gets there first, wins. The court ruled otherwise. We’re still haunted by the definition used (and accepted) in the lawsuit that says fracking fluid and sand can travel up to 3,000 feet…

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