Last week, the Pennsylvania Commonwealth Court issued an unreported opinion in an eminent domain case of potential interest in anticipation of an infusion of federal funding for infrastructure development. Montgomery
Continue Reading NEPA and State Law Condemnation in Pennsylvania

Last month, the Pennsylvania Commonwealth Court reiterated its general view of the Environmental Rights Amendment, Article I, Section 27, of the Pennsylvania Constitution. That court seems to believe that executive
Continue Reading Another ERA Decision and Some Cautions About Making Government Work

On Wednesday, the Pennsylvania Supreme Court overturned a lower court decision that appeared to make the “rule of capture” inapplicable to oil and gas wells subjected to hydraulic fracturing, or “fracking.” Briggs v. Sw. Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020) (see majority opinion; see concurring and dissenting opinion). However, the court has left open whether a well owner whose hydraulic fracturing fluids or proppants migrate under a property line, and perhaps even a well owner whose fracture traces extend across that line, has committed a trespass. Those issues are remanded, and their resolution remains uncertain.

Oil and gas (or, for that matter, any fluids) migrate into a well bore from the surrounding rock. If the well drains a conventional reservoir, the hydrocarbons may have originated at the other end of the reservoir under a different property. A well on one property can drain hydrocarbons originally located under another. Recall the “I drink your milkshake” scene from There Will Be Blood (Paramount 2007).
Continue Reading Rule of Capture is Back for Pennsylvania Oil and Gas Wells . . . Sort Of