Judicial Efficiency Helps Victims of Fracking
A new legal report argues that people affected by fracking-induced earthquakes should seek assistance from the judicial rather than the legislative system.
The article, published by Lucas Satterlee in the Environmental Law Reporter’s April issue, suggests a new legal strategy to combat the activities of fracking companies until legislators implement effective regulations. Satterlee analyzes how the law of nuisance, a long-standing legal principle which individuals and communities can use to rectify actions harming private and public property, can be applied when wastewater disposal by fracking companies results in earthquakes.
While there is a scientific consensus that the injection of fracking byproducts into the ground can generate seismic activity, affected individuals and communities are still suffering from destructive earthquakes caused by fracking byproducts. Careless disposal of wastewater into designated wells often results in significant leaks, an issue that becomes increasingly severe as fracking proliferates across the United States. Because fracking boosts local economies and furthers the cause of American energy independence, many argue that legislators in states like Texas and Oklahoma stall in addressing so-called “induced seismicity” due to political pressures against regulation.
While Satterlee acknowledges that legislation would govern corporate activity more effectively than judicial action, he states that there is a need for litigation because oil and gas corporations exercise significant influence over these states’ political agendas. For example, there has been very little regulation in Oklahoma despite the fact that in 2014, the state experienced more earthquakes than it had in the past thirty years combined, earning the title of the most seismically active in the country. Scientists at the US Geological Survey largely attribute these events to improper wastewater disposal.
The notion that courts may be able to regulate harmful corporate activity more quickly than legislatures is not a new one. Because they are subject to less lobbying pressure and can act without as much bureaucratic delay, courts often respond more swiftly to new technologies that generate revenue at the expense of certain groups.
Legal precedents can have a deterring effect on harmful activities without legislation in place when courts rule against fracking companies, forcing them to pay fines to individuals and communities and cease certain wastewater disposal activities. Satterlee argues that even if the lawsuits are unsuccessful, public outcry and the fear of future legal proceedings may lead to self-regulation.
Although the law of nuisance has rarely been used as a response to earthquakes caused by wastewater disposal, Satterlee argues in his report that “most states recognize the right of a plaintiff to recover damages caused by vibrations under a nuisance theory,” highlighting rocket engine tests, explosives, oil wells, and “other industrial activities that shake the earth” as examples. Plaintiffs often find relief in the form of payment for damages; however, in some cases, they have been able to stop the vibration-inducing activities completely.
The legal strategy has also found some success when used to address other repercussions of fracking, such as health consequences, environmental degradation, and odors. In 2014, a Texas family won a nuisance claim against a company fracking near their house, citing a wide variety of health concerns due to leaks and spills. A coalition of families in Pennsylvania used analogous arguments when seeking damages from similar corporations, stating that leaking methane, water pollution, and a foul smell constituted nuisances to private property.
Proving causation by demonstrating that the wastewater disposal practices of fracking companies were substantial factors in the “time, place, and intensity” of the earthquake is the first aspect of such a lawsuit. Plaintiffs must first provide evidence of general causation—in this case, documented proof that wastewater disposal is capable of causing seismic activity. Next, they must prove specific causation by showing that a certain tremor linked to the disposal resulted in a particular type of damage.
After establishing causation, plaintiffs must provide a framework, such as the law of nuisance, through which the court can hold perpetrators of induced seismicity accountable. Satterlee outlines three primary strategies for proving a nuisance: arguing that the harms of an earthquake outweigh the benefits of current wastewater disposal practices, demonstrating that the company was negligent in assessing risk, or suggesting that fracking threatens the viability of an entire community.
The first method, in which a plaintiff must prove that the damages suffered from an earthquake outweigh the utility of the wastewater disposal practices, varies based on a number of factors. Aside from looking at the gravity of the harm and the social and economic value of the disposal method, courts must examine whether or not the wastewater disposal is inappropriate given the rural, residential, or industrial setting, and weigh the burden on the plaintiff to avoid damage against the burden on the defendant to compensate the plaintiff.
The second way to use the law of nuisance also looks at harms to private property, but focuses more on negligence than on weighing damages to both sides. Satterlee describes how wastewater disposal may be regarded as negligent if companies knew of the potential for induced seismicity, failed to adopt protective industry standards, or violated state regulations.
The third technique Satterlee suggests applies to situations in which frequent and far-reaching earthquakes affect entire communities, often posing dangers to especially important infrastructure or threatening public health and safety. Even national security concerns can come into play, as in Cushing, Oklahoma, where induced seismicity threatens to damage one of the world’s largest crude oil storage facilities.
In assessing the likelihood of success of these types of lawsuits, Satterlee suggests that proving causation may be the most difficult part of the process, since legal precedents lag behind scientific consensus. However, as evidence develops to demonstrate the links between wastewater disposal and earthquakes, these lawsuits may become more common and easier to win.
Satterlee also argues that as induced seismicity surges in both frequency and magnitude due to continued fracking and wastewater disposal, courts may be more amenable to nuisance arguments. It will be increasingly obvious that the gravity of the harm outweighs economic benefits, that negligent companies were aware of the risks of their actions, and that the practices pose significant threats to community well-being.
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