Many courts may determine hydraulic fracturing to be an impermissible trespass. Hydraulic fracturing is a common method used to increase production from oil and gas wells. However, the extent of wellbore fractures can only be determined by theoretical calculations. This reality affects the application of the legal doctrines of the rule of capture, common law trespass, and implied covenants in the oil and gas lease. When these controversies reach the court, a traditional policy conflict is also at play: whether to protect property rights or to encourage oil and gas production.
Without express legislative endorsement of fracturing as promoting valuable public policy goals, courts could refuse to exempt the process from the technical rules of trespass. If courts conclude that fracturing can result in a trespass, they will face practical problems. Furthermore, as in any implied covenant case, determining whether an operator has breached its implied covenant obligations by failing to fracture will involve a fact-intensive inquiry. In particular, implied covenant liability could depend upon whether the jurisdiction views fracturing across lease or unit lines as an actionable trespass. Ultimately, a defendant in a trespass case based on fracturing will turn to public policy considerations to provide a shield from implied covenant liability. But if fracturing does indeed have policy implications that would justify denying an injunction or damages to neighboring landowners, it will also influence state agencies as they strive to protect the correlative rights of landowners affected by hydraulic fracturing.
Laura H. Burney, Hydraulic Fracturing: Stimulating Your Well or Trespassing?, 44 Rocky Mtn. Min. L. Inst. 19-1, 19-17 (1998).