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Pennsylvania High Court Upholds Old Precedent In Fracking

Marie Cusick
StateImpact Pennsylvania

The Pennsylvania Supreme Court has ruled to uphold a legal principle that allows drillers to drain oil and natural gas from outside their property lines.

The court overturned a 2018 decision by the lower Superior Court on Wednesday that said the “rule of capture" does not cover hydraulic fracturing, or fracking, a method of extracting natural gas from underground rock.

The “rule of capture" — precedent that oil and gas in reservoirs belongs to whomever pulls it from a well first — has been applied throughout the United States since at lease 1889, The Pittsburgh Post-Gazette reported.

“The parties to the appeal are in agreement — and we concur as well — that the rule of capture remains extant in Pennsylvania, and developers who use hydraulic fracturing may rely on pressure differentials to drain oil and gas from under another’s property, at least in the absence of a physical invasion,” Chief Justice Thomas Saylor wrote.

The Supreme Court did not rule on what happens if a fracking operation physically crosses a property boundary, in which case a company could be subject to a trespassing claim.

Attorney Robert Burnett said the court “left the door wide open” for a plaintiff if they can prove there was a physical intrusion on the part of a hydraulic fracturing operation. Burnett filed a friend-of-the-court brief on behalf of the Pennsylvania chapter of the National Association of Royalty Owners.