Court denies SWN request in ‘rule of capture’ case

BY REGGIE SHEFFIELD

Correspondent

The state Superior Court has turned down a request for a reargument from natural gas driller Southwestern Energy in the case of a Harford Twp. family who sued and won to stop the company’s use of the century-old defense known as “right of capture.”

Lawyers from Southwestern wanted to again try their argument that a three-judge panel of the court incorrectly applied the law in ruling that the “right of capture” should no longer apply in modern drilling cases as it was established with traditional vertical drilling cases in mind.

Legal experts expect any eventual final ruling in the case to clarify the rights of drillers and property owners throughout Pennsylvania where drillers seek to use what is known as horizontal drilling to recover gas from properties adjacent to those they are authorized to drill on without permission.

Attorneys for Southwestern disagree with an opinion by Superior Court Judge John L. Musmanno, who in writing for a three-judge panel of the court in April ruled that the “right of capture” no longer applied in horizontal drilling cases, which have become common here with the fracking seen in Susquehanna County.

Musmanno’s opinion said that the rule should no longer apply as it was established for traditional horizontal drilling aimed at active pools of underground gas which tend to move, or migrate, as opposed to dormant gas pools released through hydraulic fracturing.

That panel issued its ruling after the family of Adam and Paula Briggs of Harford Twp. appealed an August 2017 lower court ruling in favor of Southwestern which held that the “rule of capture” protected its right to recover gas from under an 11-acre parcel owned by the Briggs.

“The Superior Court has correctly interpreted the law,” said Briggs family attorney Laurence Kelly of Montrose.

Southwestern spokeswoman Jan Sieving said lawyers for the company will now ask the state Supreme Court to hear the case.

“We believe the trial court correctly applied established law that has stood for over a century, and plan to petition the Pennsylvania Supreme Court to hear this important issue,” Sieving said in an e-mail from the company’s Texas headquarters.

“This law encourages responsible use of Pennsylvania’s natural resources and is helping establish U.S. energy independence while creating jobs. Southwestern Energy remains committed to operating safely and contributing to Pennsylvania job growth while producing low carbon, environmentally friendly natural gas,” Sieving’s e-mail continued.