71 Am. U. L. Rev. F. 95 (2022).
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Abstract
Anglo-American courts, perhaps more than any others, hold property rights in extremely high regard. Of those rights, the right to exclude others is the most central. Beginning in the late 1800’s, American courts strove to apply centuries- old case law to the new and rapidly growing field of oil and gas production. In a system of law which held nearly any physical invasion to be trespassory, the courts struggled to resolve issues of ownership of fluid, subterranean minerals. Faced with mounting pressure from industry and private landowners, the courts developed the rule of capture.
The rule was simple: so long as no equipment crosses property lines, any extracted minerals belong to the operators. Regardless of where the minerals lay, whoever drew them up—thereby capturing them—claimed ownership. The rule protected oil and gas wellhead operators from claims of trespass and conversion even when the gas flowed to their wellhead from underneath an adjacent property. So long as the drilling, pumping, and extraction remained on owned or leased property, the operators were free to produce as much as they could.
For over a century, the rule guided and shaped the oil and gas industry and how it interacted with private landowners. However, fracking, an extraction process which injects water, chemicals, and other materials underground irrespective of property lines, is causing a new generation of claims. Despite the near-certain physical invasion of injectants below ground, Texas and Pennsylvania courts recently decided that the rule applies regardless.
The application of the rule assumes that the geological realities of 19th century drilling apply to modern fracking. While the products are the same, the processes are wildly different, and the consequences of ignoring these differences are harming private land owners across America. Once the wells run dry, these predominantly underprivileged communities are left with the lingering social, economic, and health costs of fracking, much of which is justified largely by fracking’s questionable connection to the rule of capture. This Comment examines these decisions, the precedent on which they stand, and the fundamental flaws of applying the rule of capture to modern fracking.
* Junior Staff Member, American University Law Review, Volume 71; J.D. Candidate, May 2023, American University Washington College of Law; B.A., English, 2014, Villanova University. I give my gratitude to the Law Review staff and editors for helping me hone this piece to and through publication. This Comment could not have happened at all, though, without the endless, graceful support of my wife and closest friend, Valerie.