In the 2007 film There Will Be Blood, Eli Sunday offers to sell Daniel Plainview the drilling rights to land of the recently-deceased William Bandy. Plainview mocks Sunday’s offer, revealing that he has already drained Bandy’s land dry of oil, and the land is now worthless. To illustrate, Plainview uses the analogy of reaching a straw across the room to drink Sunday’s imaginary milkshake. Plainview shouts “I drink your milkshake . . . I drink it up!” in Sunday’s face.
The practice of draining hydrocarbons from beneath an adjoining property is nothing new and is subject to the legal concept known as “the rule of capture.” In the context of oil and gas law, the rule of capture precludes liability for draining oil and gas from under another’s property so long as there has been no trespass. In Pennsylvania, a trespass occurs when a person intrudes onto property owned by someone else without their consent or places an object on someone’s property without their consent. On January 22, 2020, the Supreme Court of Pennsylvania declared that protection under the rule of capture applies to hydraulic fracturing, i.e. “fracking.” More specifically, developers who use hydraulic fracturing may rely on pressure differential
Continue Reading I Drink Your Milkshake! Fracking and the Rule of Capture