In a split 3-2 decision, the Pennsylvania Supreme Court held that the rule of capture applies to gas wells completed using hydraulic fracturing, though the Court’s holding was limited by the undeveloped factual record in the case. See Briggs v. Southwestern Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020). With the Court’s decision, Pennsylvania joins Texas and other states that have applied the rule of capture to hydraulic fracturing. The narrow scope of the Court’s holding, however, makes it almost certain that neighboring landowners will continue to assert trespass and conversion claims against developers in Pennsylvania engaging in hydraulic fracturing until the law is further developed. Read More »

Share | Email| Comments|  Topics: Drilling, Energy, Exploration, Hydraulic Fracturing, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Royalties, Trespass

Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

In Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (6th Cir. Feb. 4, 2019), released on Monday, February 4, the Sixth Circuit Court of Appeals held that a pipeline’s use of Ohio’s forced pooling law is not a taking under the Fourteenth Amendment. This decision, although not recommended for full text publication, is significant as more states enact and/or expand the scope of such laws, and may influence a similar suit brought in Colorado, within the Tenth Circuit, challenging the constitutionality of Colorado’s forced pooling regulations.  Read More »

Share | Email| Comments|  Topics: Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Oil and Gas, Royalties, Sixth Circuit, Takings, Takings Clause, Trespass

Since 2009, the Delaware River Basin Commission (“DRBC”) has effectively placed a moratorium on fracking activity within the Delaware River Basin (the “Basin”), premised on its assertion that any such activity is a “project” over which the DRBC has authority. But in Wayne Land & Mineral Group LLC v. Del. River Basin Comm’n, No. 17-1800, 2018 WL 3233784 (July 3, 2018), the Third Circuit, overturning a Pennsylvania District Court decision, has held that Delaware River Basin Compact’s (the “Compact”) definition of “project” is ambiguous, and that the DRBC may be without authority over fracking. The Third Circuit’s decision creates uncertainty regarding the scope of the DRBC’s authority and the future of fracking and other land use activities in the Basin. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Declaratory Relief, Delaware River Basin Commission, Drilling, Energy, Exploration, Groundwater, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Earlier this month, in B&R Resources, LLC v. DEP, No. 1234 C.D. 2017 (March 15, 2018), Pennsylvania’s Commonwealth Court held that the sole managing member of a limited liability company may be personally liable for his company’s failure to plug certain abandoned wells. In doing so, the Commonwealth Court clarified that the participation theory of liability, which essentially extends liability from a corporation to its officers who “participated” in corporate wrongdoing, may encompass not only intentional misconduct by an officer but also deliberate inaction. Read More »

Share | Email| Comments|  Topics: Energy, Exploration, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines

On July 19, 2017, the Tenth Circuit Court of Appeals held that the United States, as the title owner of a former mine, was a Potentially Responsible Party (PRP) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), despite the fact that it did not have a possessory interest in the property at the time of the disposal of hazardous substances.  The opinion in Chevron Mining Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959, at *1 (10th Cir. July 19, 2017) thus appears to put to rest a defense often asserted, primarily by governmental entities, that “bare legal title” is insufficient for CERCLA liability to attach and instead that some other and additional “indicia of ownership” is required. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Exploration, Mineral Rights, Public Lands, Remediation, Superfund, Tenth Circuit

On June 7, 2017, the Commonwealth Court upheld a zoning ordinance allowing oil and gas drilling in mixed use agricultural and residential areas of a Butler County municipality because the pre-existing zoning code had already allowed construction of what the Court found were substantially similar public utility structures. 

The issues in Delaware Riverkeeper et al. v. Middlesex Township Zoning Hearing Board v. R.E. Gas Development LLC et al., 1229 CD 2015, 1323 CD 2015, 2609 CD 2015, arose out of Middlesex Township’s Ordinance 127, enacted in 2014, which sought to add a “oil and gas well site development” use within a Residential-Agricultural (“R-AG”) District. Environmental groups, the Clean Air Council and the Delaware Riverkeeper Network, appealed the Middlesex Township Zoning Hearing Board’s enactment of the ordinance, upheld by the Butler County Court of Common Pleas, which found in part that the added language was a permissible extension of the already existing zoning provisions. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Exploration, Legislation, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Real Estate, Zoning

In a decision issued today in Pa. Independent Oil & Gas Assoc. v. Commonwealth, No. 321 M.D. 2015, a seven-member panel of the Pennsylvania Commonwealth Court held that Section 3215(c) of Act 13, the Pennsylvania Oil and Gas Act, remains enforceable despite the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).  Section 3215(c) provides that when making a determination on a proposed oil and gas well, DEP “shall consider” the impact of the proposed well on public resources, including parks, rivers, landmarks, historic sites, flora and fauna habitat, and public drinking water sources.  Read More »

Share | Email| Comments|  Topics: Act 13, Declaratory Relief, Drilling, Drinking Water, Exploration, Legislation, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Water, Wetlands

Earlier this month, the Colorado Supreme Court invalidated two municipalities’ bans on hydraulic fracturing, holding that the local ordinances instituting the bans were preempted by state law.  In City of Longmont v. Colorado Oil and Gas Association, No. 15SC667 (May 2, 2016), the Court held that an indefinite ban on fracking activity was preempted by the state’s Oil and Gas Act, which generally provides that fracking is permitted and supported in the state.  Similarly, in City of Fort Collins v. Colorado Oil and Gas Association, No. 15SC668 (May 2, 2016), the Court held that a local ordinance instituting a five-year moratorium on fracking that was slated to expire in 2018 was likewise preempted. Read More »

Share | Email| Comments|  Topics: Act 13, Colorado, Energy, Exploration, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass