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Environmental Blog

  • 26
  • November
  • 2018

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Round Three: The Pennsylvania Supreme Court Agrees to Review Briggs in Deciding Whether the Rule of Capture Defeats a Claim of Trespass for Drainage Arising from Hydraulic Fracturing

On November 20, 2018, the Pennsylvania Supreme Court agreed to review the April 2018 intermediate appellate court decision, Adam Briggs et al. v. Southwestern Energy Production Company, which held that the “rule of capture” did not bar a claim for trespass when an operator’s hydraulic fracturing activity resulted in the drainage of gas from an adjoining tract that was not a part of the operator’s lease.

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Collision Course: Colorado Initiative #108 Seeks to Blunt Private Property Owners’ Damages Occasioned by State and Local Government Through Initiative #97

A petition for ballot Initiative #108 was submitted to the Colorado Secretary of State in advance of the August 6, 2018 deadline for proposals to be considered for inclusion on Colorado’s general election ballot on November 6, 2018. Touted as a “property rights” measure, Initiative #108 proposes to amend the Colorado Constitution in order to provide an equal playing field for private property owners seeking just compensation when state or local government takes action diminishing the “fair market value” of their properties.

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Colorado Initiative #97: The Petition Beats the Deadline but is it Enough?

The Office of the Colorado Secretary of State confirmed on Monday, August 6, 2018 that a petition for ballot Initiative #97 was turned in by the deadline period and will be considered for inclusion on the November 6, 2018 general election ballot. As we previously reported, Initiative #97 seeks to establish a 2,500-foot buffer zone that is free of new oil and gas development around defined “occupied structures” and “vulnerable areas” in the state.

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Is the Third Time the Charm? - Initiative #97 Seeks a Five-Fold Increase in Setback Distances Between Homes and New Oil and Gas Development in Colorado

Following on the heels of failed attempts in 2014 and 2016, proponents of greater restrictions against new oil and gas exploration and production activities in Colorado are once again seeking to increase the regulatory setback distance between homes and new oil and gas development in the state. Currently, proponents of a ballot initiative – Initiative #97 – are working to obtain enough signatures to place the proposal on the Colorado ballot in November 2018.

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Briggs Remains the Law in Pennsylvania, as a State Appellate Court Refuses to Reconsider Case Allowing a Claim of Trespass for Drainage Arising from Hydraulic Fracturing

On June 12, 2018, a Pennsylvania appeals court refused a petitioner’s request for an en banc rehearing on a case decided by a three-judge panel in April 2018, holding that the rule of capture did not bar a claim for trespass under circumstances where an operator’s hydraulic fracturing activity resulted in the drainage of gas from an adjoining tract that was not a part of the operator’s lease.

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Will Trespass Claims for Hydraulic Fracturing Remain Triumphant Over the Rule of Capture in Pennsylvania? An Oil and Gas Operator Seeks Reconsideration in Briggs

In oil and gas law, it is well-settled that the “rule of capture” holds that there is no liability for a mineral rights owner’s drainage of oil and gas from another person’s land so long as the oil and gas is produced from a well bottomed on the mineral owner’s property and all relevant statutes and regulations have been observed. The rule shields exploration and production operators from liability for a trespass when they extract oil and gas below ground from another person’s land, unlike the case where a prospector extracts hard minerals such as coal or precious metals such as gold or silver. The application of the rule of capture to extraction of oil and gas and not to hard or precious minerals is due in large measure to the “fugitive and wandering” nature of oil and gas.

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Margaret E. Peloso

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