PA Briggs “Rule of Capture” Case Turns on Concept of Drainage

In April, MDN brought you the news that Pennsylvania Superior Court had handed down a decision (known as the “Briggs” case) 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 the 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. Southwestern successfully argued in a lower court that the odd crack here and there that may slip under a neighbor’s property is permissible. The landowner appealed to Superior Court and three judges heard the case. Two of the three overturned the lower court and sided with the landowner. Southwestern, following that decision, petitioned the Superior Court to have all of the sitting justices (called en banc) hear the case. Sadly, in June the Superiors proved they aren’t so superior after all, declining to rehear the case (see PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal). Southwestern then appealed the case to the PA Supreme Court in early July (see Southwestern Appeals “Briggs” Trespass Case to PA Supreme Court). No word yet on whether or not the Supremes will take the case. In the meantime, this case and its ultimate effect on drilling in PA and beyond is still a hot topic of discussion throughout the industry. We spotted two recent articles tackling it–one from a lawyer who does a great job of crystallizing the important elements in the case–that this case turns on the concept of drainage, and the other article which tackles the broader topic of how energy law in PA is charting its own path separate from Texas and other big oil/gas states…

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