Subscribe for updates
Recent Posts
- Court Dismisses Microplastics Consumer Protection Suit Citing Federal Preemption
- Montana Supreme Court Finds Constitutional Right to Stable Climate
- D.C. Circuit Issues Surprise Holding in NEPA Dispute: CEQ Regulations are Non-Binding
- New Mexico District Court Applies Pro-Rata Method to Settlement under CERCLA
- New Jersey Appellate Division Finds The New Jersey Constitution Does Not Provide A Fundamental Right To “A Stable Environment”
Topics
- Council on Environmental Quality
- Loper Bright
- Agency Action
- New Jersey Civil Rights Act
- Public Trust Doctrine
- Title VI
- Disparate Impact
- Environmental Justice
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- Georgia
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Vapor Intrusion
- Solvents
- National Priorities List
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Environmental Covenants
- Federal Circuit
- National Contingency Plan
- Divisibility
- Apportionment
- Strict Liability
- Water Pollution Control Act
- Public Utilities Commission
- Historic Resources
- Utilities
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Martime
- Asbestos
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Gold King Mine
- New Mexico
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- FERC
- National Forest Management Act
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Innocent Party
- Brownfields
- Brownfield
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Damages
- Stigma
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Electric
- Energy
- Fifth Circuit
- Indemnification
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Administrative Appeals
- Taxes
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Inspection
- Residential
- New York
- Pennsylvania Department of Environmental Protection
- Federal Energy Regulatory Commission
- Natural Gas Act
- HAPs
- Hazardous Air Pollutants
- Mercury
- D.C. Circuit
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Spill Act
- Causation
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Zoning
- Act 13
- Duty to Defend
- Insurance Coverage
- Eminent Domain
- Landfill
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Citizen Suit
- Diligent Prosecution
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Montana
- Navigability
- Riverbed
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- CISWI
- Enforcement
- Equity
- Laches
- Consent Decree
- Delay Notice
- EPA
- Boiler MACT
- Rulemaking
- Declaratory Relief
- Second Circuit
- Contribution
- Standing
- NPDES
- Procedure
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Contamination
- Dukes
- Louisiana
- Certification
- CLE
- Decisions of Note
- Cases to Watch
- Discovery
- Expert Witness
- Privilege
- Work Product
- CERCLA
- Cost Recovery
- Defense Costs
- Insurance
- Real Estate
- Negligence
- Remediation
- Response Action Contractors
- Consultant Liability
- Donovan
- Rapanos
- Army Corps
- Farming
- Hog Barn
- Kentucky
- Nuisance
- Class Actions
- Odors
- Trespass
- New Jersey
- Informal Agency Action
- Administrative Hearing
- ISRA
- Waste
- Air
- Cancer
- Combustion
- Emissions
- Railroad
- RCRA
- Speaking Engagements
- Toxic Torts
- Federal Procedure
- Removal
- Third Circuit
- Clean Air Act
- Permits
- Statute of Limitations
- Title V
- Cleanup
- Superfund
- Supreme Court
- Multi-District Litigation
- Statute of Repose
- Tolling
- Camp Lejeune
- Due Process
- Mineral Rights
- Enforcement Action
- Wetlands
- Administrative Procedures Act
- Deeds
- Clean Water Act
- Marcellus Shale
- Exploration
- Leases
- Oil and Gas
- Royalties
- Drilling
Blog editor
Blog Contributors
On September 7, 2011, the Pennsylvania Superior Court issued its decision in Butler v. Estate of Powers, 2011 Pa Super 198, sending the case back to the trial court to decide, in short, who owns the natural gas in the Marcellus Shale formation — the owner of the mineral rights, or the owner of the oil and gas rights.
This particular case begins a long time ago, in 1881, when Charles Powers sold 244 acres of land in Susquehanna County but reserved for himself and his heirs, among other things, the rights to “one half the minerals and Petroleum oils.” Over a century later the Butlers, current owners of the property, filed an action seeking a declaration that Powers’ heirs had lost the rights reserved to them in the deed. The jockeying for ownership was driven in large part, if not completely, by the potential that gas could be derived from the shale far below the surface of the ground and the primary question eventually faced by the Court was this: does a reservation of mineral rights include the gas in the Marcellus shale?
The legal issue of gas rights ownership in Pennsylvania is as old as the Powers deed. In 1882, a year after the Powers deed was written, the Pennsylvania Supreme Court held that the mineral rights reserved or transferred by deed did not necessarily include gas and oil rightd but, instead, that the presumption was that the oil and gas rights were not transferred with the mineral rights. One hundred years later, in 1983, the Pennsylvania Supreme Court again drilled into the issue, holding that methane gas present in coal seams is owned by the party who owns the mineral rights, but the gas that migrates into surrounding formations is owned by the party who owns the oil and gas rights.
So where does that leave gas in the Marcellus Shale formation? The Butlers have argued that it is similar to the methane in coal seams, because in both cases the gas can be extracted only by releasing the gas from the mineral, a proposition the trial court disagreed with. But the Superior Court did not — at least not as a matter already settled. Rather, the Superior Court sent the case back to the trial court, giving the parties “the opportunity to obtain appropriate experts on whether Marcellus shale constitutes a type of mineral such that the gas in it falls within the deed’s reservation.”
This case, which appears to be one of first impression in Pennsylvania, is certain to be carefully watched because, whatever the outcome, it will have a dramatic impact on Marcellus shale exploration and production as well as exploration and production from other shale formations such as the Utica Shale.