The notion that an oil and gas producer can commit a trespass by engaging in hydraulic fracturing gained traction on April 9, 2013, when U.S. District Judge John Preston Bailey of the Northern District of West Virginia denied a motion for summary judgment filed by oil and gas producer defendants Chesapeake Appalachia, LLC, Statoil USA Onshore Properties, Inc. and Jamestown Resources, Inc. in Stone v. Chesapeake Appalachia, LLC. In this case, Chesapeake Appalachia drilled a horizontal Marcellus Shale well with a vertical well bore within 200 feet of the plaintiffs’ property and a horizontal well bore within “tens of feet” of the plaintiffs’ property. Although Chesapeake Appalachia maintains a lease for the oil and gas underlying the plaintiffs’ property, plaintiffs’ lease does not authorize pooling or unitization of the Marcellus formation.
According to analysis by McGuireWoods Consulting, this decision may pose a potential problem for oil and gas producers in West Virginia if trespass by hydraulic fracturing is a viable cause of action. Ultimately, the West Virginia Supreme Court may have the last word.