PA Superior Court Overturns “Rule of Capture” for Marcellus Well
STOP PRESS: Shortly after this post was published, a MDN reader (an energy attorney) called us to alert us that our initial take on this case is not right. The case is NOT about a company stretching a lateral too far so that it trespasses under an adjoining property. Instead, the case is about the “zone of fracking”–that is, that fracking, by its nature, creates cracks that may open up and drain some of the gas under a neighboring property–even though the fracking was done properly within the boundaries of the leased property. The case (ominously) says that fracking itself can cause a trespass. Our attorney friend said this case has the potential to negatively affect Marcellus drilling in PA–in a BIG way. We will write another post on this issue tomorrow. In the meantime, just be aware that our initial take below is not correct. – Jim Willis, Editor
The Pennsylvania Superior Court handed down an important decision yesterday that impacts both Marcellus landowners and drillers. The decision removes “rule of capture” as a way for shale drillers to drill under adjoining neighbors who haven’t specifically leased their property for drilling. The rule of capture came about with conventional (vertical only) drilling, cases in which a pool of oil or natural gas exists that runs underneath the property owned by multiple surface owners (see the image to the left). The rule of capture principle says “the first person to capture a natural resource owns that resource.” If you put a well or two or three on your property to extract the oil/gas, if it flows from the neighbor’s side to your side and up the well, it’s yours. Same for your neighbor. He/she can grab the oil and gas under your property if the pool exists under both. The principle originated in England (it’s a very old principle). However, Southwestern Energy tried to use the rule of capture principle to drill under property not leased for drilling that sits next to property that is leased–claiming the rule of capture. The molecules in shale are a whole other story than molecules sitting in a common pool. That’s what the Superiors ruled. Southwestern (and by extension, other Marcellus drillers) can’t simply extend a lateral well a few hundred feet under an un-leased neighbor, which certainly makes sense to us…
Read More “PA Superior Court Overturns “Rule of Capture” for Marcellus Well”
Last December the Pennsylvania Dept. of Environmental Protection (DEP) issued “draft final language” for the proposed General Permit 5A (GP-5A) and the revised General Permit 5 (GP-5)–regulations that supposedly will cut down on fugitive methane from escaping from drill pads and pipelines (see 
Last Friday MDN editor Jim Willis had the pleasure of speaking at the National Association of Royalty Owners (NARO) Pennsylvania Chapter annual convention in State College, PA. Jim was humbled to present alongside a cast of terrific speakers, including Scott Perry, Deputy Secretary of the Office of Oil and Gas Management at the PA Dept. of Environmental Protection, Tom Murphy, Director of Penn State’s Marcellus Center of Outreach and Research (MCOR), and Scott Kurkoski, a top lawyer and head of the energy practice for Levene, Gouldin & Thompson (thanks for the ride home Scott!). One of the first attendees at the event to stop by the MDN table for a chat asked if we had heard about a letter recently sent by EQT to PA landowners. We had not. He gave us a copy (below). In the letter, EQT claims they have been “subsidizing a portion of the cost to gather the gas” produced by their PA wells, and they intend to begin claiming new deductions from royalty checks beginning this year. The way they position it in the letter is that landowners will begin “sharing” in these post-production costs. Who doesn’t like to share, right? We can tell you, not a single attendee at the event was impressed with EQT’s “sharing” letter. It smacks of the road Chesapeake Energy has gone down in robbing landowners of their royalties…
The Pennsylvania Dept. of Conservation and Natural Resources (DCNR) has just amended an existing lease with EQT that allows EQT to extract natural gas (and other hydrocarbons) from underneath the Monongahela River in Allegheny, Greene, Fayette, Washington and Westmoreland counties. EQT is paying $4,000 per acre for 392 acres ($1.568 million total) in a signing bonus, along with a big 20% royalty on anything produced. However, the announcement raises an important question we’ve asked for more than four years: Is the land under rivers and streams actually owned by the state? PA says yes. We suspect landowners who own land along those rivers and streams would say otherwise. The state grabbing money for land under bodies of water has been going on for years (see 
One of the lies told by Pennsylvania Gov. Tom Wolf in attempting to sell a Marcellus-killing severance tax to the general population is that most of the tax would fall on businesses and corporations outside of PA. The rallying cry has always been that PA landowners would not bear any of the severance tax–as in deductions from royalties paid. That lie was exposed by none other than the PA Independent Fiscal Office last week when the IFO released a report that calculates of the estimated $210 million in severance taxes that would be raised, per year, by the latest Wolf proposal–some $28 million of it (over 13%) would come out of the pockets of landowners–IN THE FIRST YEAR. By the third year, that number rockets to $51 million (or 24%). That is, a meaningfully large portion of the proposed severance tax WILL get passed on to landowners as deductions from their royalties. Lesson for landowners: Don’t fall for the siren song from Wolf and RINOs who say “If you support the severance tax (it won’t affect you), we’ll get you your minimum royalty bill.” It’s a farce…
Pennsylvania Gov. Tom Wolf has been obstinate in demanding onerous new drilling rules for the conventional, as well as unconventional (shale) drilling industry since he took office. Reworked drilling rules for both conventional and shale drillers were done and ready to go under previous Gov. Tom Corbett. Then Corbett lost to Wolf, and Wolf demanded changes to the common sense rules everyone had already agreed to (see 
Two Pennsylvania Senate committees–the Environmental Resources and Energy and the Consumer Protection and Professional Licensure committees–held a joint hearing on Tuesday supposedly on the topic of “pipeline safety”–but instead the hearing turned into a bash Sunoco Logisitcs and the Mariner East 2 (ME2) Pipeline hearing. A variety of witnesses testified. Unfortunately, State Sen. Gene Yaw (RINO from Lycoming County), chairman of the Environmental Resources and Energy Committee, didn’t invite Sunoco to testify, so it was a one-way bash fest. Sunoco was not allowed to respond. Thanks Gene. It wasn’t a court hearing, so we can’t call it a kangaroo court. Perhaps we can call it a kangaroo Senate hearing? While the discourse in the hearing was mostly civil (although it was nonstop bashing of Sunoco), a group of rabble rousers nearby was not. A group of 10-15 (depending on the news source) marched on Gov. Tom Wolf’s office. They were there to serve Wolf with a mock “Notice of Probable Violation and Summons,” which the malcontents say requires Wolf to appear in Chester County before families impacted by construction of ME2. The small mob was met with locked doors and Capitol Police who turned them away…
Sunoco Logistics Partners (aka Energy Transfer Parnters) has had its challenges in constructing the twin Mariner East 2 (ME2) pipelines across Pennsylvania. Earlier this month MDN told you that underground horizontal directional drilling (HDD) work in Chester County had led to a third sinkhole developing in that area (see 
Let’s be honest. Pennsylvania, Ohio and West Virginia compete against each other, fiercely, to attract business to their respective states. However, in 2015 the three states agreed to lay aside their competitive natures when it comes to shale and cooperate (pool resources) for things like marketing and promotion, workforce development, transportation/infrastructure and research (see 
In January MDN brought you the sad news that the Philadelphia Energy Solutions (PES), which operates the East Coast’s largest refinery on the banks of the Delaware River, had filed for Chapter 11 bankruptcy (see 
Rover Pipeline is in hot water again. This time it’s not Captain Craig “Ahab” Butler from the Ohio EPA, but the West Virginia Dept. of Environmental Protection. In a letter just released publicly (dated March 5), WVDEP slapped Rover with a “cease-and-desist” order, stopping all construction of Rover in the state, because of inspections in February that found 14 violations of water pollution regulations. The violations occurred in Doddridge, Tyler and Wetzel counties. Violations ran the range of leaving trash behind at construction sites to improper perimeter controls (no erosion devices installed) to failure to clean up the roads they used. In addition to trouble in WV, Rover is also facing new issues in both Ohio and Pennsylvania. In February heavy rains in the region caused “slippage issues” where the pipeline is being installed. Rover filed a report with the Federal Energy Regulatory Commission (FERC) last week to say it has eight crews working to correct slippage issues at six locations along its 51-mile Burgettstown Lateral. Here’s the latest on WV shutting down Rover, and Rover’s work to fix slippage issues…
Last week MDN reported that due to underground horizontal direction drilling (HDD) in Chester County, PA for the Mariner East 2 (ME2) Pipeline project, a third sinkhole had developed. ME2 is being built close to the existing Mariner East 1 (ME1) pipeline. The sinkhole exposed a portion of the ME1 pipeline to the open air, which is why the head of the state Public Utility Commission (PUC) temporarily shut down the propane and ethane flowing through ME1 (see 
We bet you didn’t know that a bloated, inefficient government bureaucracy like the Pennsylvania Dept. of Environmental Protection (DEP) can cut down on the amount of time it takes them to review permits necessary in the drilling process (like erosion and stream crossing permits)–just by changing the paperwork. That’s the claim the DEP is making. Yesterday the DEP released new paperwork–new forms to fill out–for Chapter 105 General Permit Registrations relating to water obstructions and encroachments. These new forms “will improve the quality of General Permit registration requests, eliminate unnecessary redundancies, and reduce review time frames.” Yeah, and we have a bridge in Brooklyn we’d like to sell ya…
As we reported last week, this week the PA House of Representatives was due to host a hearing on a slate of bills aimed at fixing not only the slowmo way the state Dept. of Environmental Protection approves permits, but also roll back some of the egregious regulatory overreach in PA (see