Oil and Gas Update

Pennsylvania Supreme Court Affirms Application of Rule of Capture to Hydraulic Fracturing

January 29, 2020

On January 22, 2020, the Supreme Court of Pennsylvania reached a long-awaited decision regarding hydraulic fracturing and affirming the principle known as the “rule of capture.” In Briggs v. Southwestern Energy Production Company, the Supreme Court concluded that the rule of capture is applicable where hydraulic fracturing is utilized, and that said use, absent evidence of physical invasion, is…

Pennsylvania Appellate Court Decides "Rule of Capture" Does Not Preclude Liability From Trespass Due To Hydraulic Fracturing

June 12, 2018

In a decision which may have severe consequences on oil and gas operations not only in Pennsylvania, but nationwide, the Superior Court of Pennsylvania held on April 2, 2018, in Briggs. v. Southwestern Energy Production Company, 2018 PA Super 79 (Apr. 2, 2018) that the “rule of capture” would not preclude liability for trespass of oil and gas operations due to hydraulic fracturing.

The rule of…

PA Supreme Court Rejects PADEP's Theory of Limitless Civil Penalties for "Continuing Violation" of Clean Streams Law

April 25, 2018

We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…

Supreme Court of Ohio Declines to Recognize Implied Covenant to Explore Further

January 9, 2018

In Alford v. Collins-McGregor Operating Co., 2018-Ohio-8, the Supreme Court of Ohio decided that Ohio does not recognize an implied covenant to explore further, separate and apart from the implied covenant of reasonable development. In Alford, the Appellants were landowners and lessors of an oil and gas lease with Appellees. The lease was held by the production of a single well drilled to the…

Ohio's 7th District Court of Appeals Issues Opinions on Deed Interpretation - Adopts Duhig Rule

January 4, 2018

The 7th District Court of appeals was busy interpreting deeds in December. The Court issued four opinions involving the interpretation of purported mineral reservations in various conveyances in four separate decisions: Talbot v. Ward, 2017-Ohio-9213, Mcauley v. Brooker, 2017-Ohio-9222, Rubel v. Johnson, 2017-Ohio-9221, and Porterfield v. Bruner Land Company, Inc., 2017-Ohio-9045. While deed…

Sixth Circuit stays NEXUS pipeline construction in Green, Ohio pending review of Ohio EPA’s CWA §401 certification

December 19, 2017

On November 22, 2017, in one of many ongoing challenges to pipeline construction, a three-judge panel of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in a 2-1 decision, granted an emergency stay of pipeline construction within the city of Green, Ohio (“Green”) pending a decision on the merits of Green’s petition seeking review of the Clean Water Act (“CWA”) §401…

CRISIS MANAGEMENT: ARE YOU READY?

December 18, 2017

“Everybody has a plan . . . until they get punched in the face.” Mike Tyson.

In his prime, Mike Tyson created a crisis for opposing fighters. Many claimed to have a plan for dealing with Iron Mike, but the plan didn’t hold up under pressure.  And Mike knew it.

Planning for a crisis is difficult, but necessary. Crises by their very nature are unexpected, so you cannot plan a detailed response in…

Northern District of Ohio Addresses Royalty Issue in Lutz Opinion

October 29, 2017

Issues regarding the deduction of post-production costs from royalty payments to landowners were recently addressed by a Memorandum Opinion and Order filed in Lutz v. Chesapeake Appalachia, LLC, Case No. 4:09-cv-2256-SL, United States District Court, Northern District of Ohio, Eastern Division.

Lutz has a long procedural history and involved somewhat novel questions under Ohio law. The Northern…

FERC Sidesteps New York’s Denial of CWA §401 Certification Giving Go-Ahead to Millennium Pipeline Company Spur

October 10, 2017

“For any company desiring to construct a natural gas pipeline, all roads lead to FERC.” Millennium Pipeline Company, L.L.C. v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017).

In a significant and already controversial decision issued in mid-September, the Federal Energy Regulatory Commission (“FERC”) granted approval for Millennium Pipeline Company L.L.C. (“Millennium”)…

Sierra Club Links Up with Libertarian Landowners in Continued Opposition to Gas Development

September 7, 2017

Opponents of natural gas development do not have the resources to challenge individual well permits in the Marcellus and related shale gas basins. Instead, they understand that the future of the industry depends on assembling the rights to draw gas from fractionated ownership and on the ability to attract higher prices by building transmission pipelines to carry the gas to new markets.  So, the…

Third Circuit Rejects Challenge to Corps of Engineers’ Permit for Pipeline

September 6, 2017

On August 23, the Third Circuit Court of Appeals affirmed the Corps’ decision to issue a Clean Water Act § 404 “fill” permit to a pipeline developer for 13 miles of pipeline in Pennsylvania. See Delaware River Network v. U.S. Army Corps of Engineers, No. 17-1506 (3rd Cir. Aug. 23, 2017).  The Riverkeeper’s challenge was an original action filed in the 3rd Circuit pursuant to the…

Virginia Supreme Court Largely Affirms Right of Pipeline to Conduct Property Surveys and Examinations without Landowner Approval

August 2, 2017

The Virginia Supreme Court issued two opinions on July 13, 2017, addressing the rights of pipelines to survey property without landowner permission. In the first, Chaffins v. Atlantic Coast Pipeline, LLC, the Court considered what constitutes adequate prior notice by a pipeline company to gain access for surveys and property evaluation in the absence of landowner approval. In the second, Palmer…