Hydraulic fracturing (“fracking”) has gained a lot of attention in media and political circles recently, both in the United States and in Europe, but perhaps less well known are the legal and scientific research issues surrounding fracking operations. In fact, there have been numerous lawsuits filed across the country relating to fracking activities, and scientists and experts have continued to examine the possible effects of fracking on air pollution, groundwater contamination, radiation levels, health and safety, and seismic activity (earthquakes). Recently, with respect to earthquakes, seismic experts have published studies attempting to address the question of whether fracking activities – either the extraction of oil and water or the injection of recovered wastewater – can contribute to earthquakes. At the same time, plaintiffs around the country have commenced lawsuits alleging that fracking operations have contributed to earthquakes, causing damage to their homes and businesses.
Some scientists hypothesize that the concern with fracking and earthquakes is not the actual drilling methods, but rather the injection of wastewater that is recovered from the fracking process into deep wastewater wells at high pressures. For example, in July 2013, the Earthquake Science Center, which is a part of the U.S. Geological Survey (USGS), published a study entitled Injection-Induced Earthquakes, suggesting that wastewater injection may have played a role in earthquakes in the mid-United States. Results from the study indicated that the injection rate and volume of injection may be a predictor of seismic activity, and therefore suggested managing the risk for seismic activity through a “traffic-light” system which would set thresholds to reduce the injection rate and pressure as needed. Another study published in July 2013 by the Institute for Geophysics, University of Texas of Austin, entitled Two-year survey of earthquakes and injection/production wells in the Eagle Ford Shale, Texas, prior to the Mw4.8 20 October 2011, however, appeared to reach a different conclusion, suggesting that there was no evidence that an earthquake in the Eagle Ford region was caused by the injection of wastewater, but rather the earthquake may have been triggered by the extraction of oil and water during the fracking process. These results contrasted with an earlier study by the same authors on the Barnett Shale of northeast Texas, which discussed a possible correlation between earthquakes and fluid injection. The University of Texas study concluded that the relationship between seismic activity and injection and extraction is more complex in some geographic regions than in other regions. These studies show that the science on fracking and earthquakes is not a model of clarity and there does not appear to be any consensus on whether fracking can in fact be linked to earthquakes. Indeed, the United States Department of Interior Deputy Secretary David J. Hayes publicly stated just last year that “[t]here is no evidence to suggest that hydraulic fracturing itself is the cause of the increased rate of earthquakes.”
Nevertheless, plaintiffs with homes and businesses near fracking sites have commenced lawsuits attempting to link an alleged growing incidence of earthquakes to fracking activities by oil and gas companies. See e.g. Hearn v. BHP Billiton Petroleum (Arkansas) Inc., et al., No. 4:11-cv-474 (E.D. Ark.); Finn et al. v. EOG Resources, Inc., et al., No. C201300343 (Johnson County). For example, in five federal actions filed in the Eastern District of Arkansas and later consolidated, plaintiffs claimed that Central Arkansas experienced an “unprecedented increase in seismic activity” as a result of Defendants’ oil and gas operations. There, plaintiffs alleged that the injection of wastewater, not the extraction of water and oil, caused an increase in seismic activity. Plaintiffs sought damages for physical damage to their homes and commercial real estate, loss attributable to the purchase of earthquake insurance, loss of fair market value of their real estate due to earthquakes, and economic loss due to temporary stoppage of business operations. See e.g. Hearn v. BHP Billiton Petroleum (Arkansas) Inc., et al., No. 4:11-cv-474 (E.D. Ark.). Plaintiffs also claimed damages for emotional distress, as well as punitive damages, and requested declaratory and injunctive relief to effectively cease fracking operations near their residences and businesses. Id.
Despite the Arkansas complaint’s allegation that “[s]cientists have known for half a century that disposal well operations will cause earthquakes[,]” id., the scientific research thus far has not been able to establish a clear link between fracking and earthquakes. This will likely make it difficult for plaintiffs to prove causation in support of their claims for negligence. In fact, numerous issues are likely to add hurdles to plaintiffs asserting negligence claims in these suits including the lack of definitive science linking fracking to earthquakes, geographical and geological differences in shales across the United States, the unpredictability of seismic activity, the lack of knowledge of pressure conditions at depth, and the inability to rule out natural causes of earthquakes. To date, there have been no decisions on suits relating to fracking and earthquakes, and no cases have made it to trial. This past August, the Arkansas federal action, Hearn v. BHP Billiton Petroleum (Arkansas) Inc., et al., No. 4:11-cv-474 (E.D. Arkansas.), settled for an undisclosed amount. Thus, there is no guidance from courts as to how they will deal with complex issues such as causation and foreseeability, which are likely to be hotly contested legal issues in these litigations.
In sum, the science is still out on whether fracking can be linked to increased seismic activity. As the studies recognize, much more research is needed on the topic before any reliable conclusions can be reached. Until then, if seismic activity does happen to occur near an area where fracking may be taking place, plaintiffs will no doubt continue to bring lawsuits against oil and gas companies for damages allegedly caused by the seismic activity. As a result, companies should conduct due diligence and prepare to defend against such claims and manage their risks. In fact, some states are now requiring companies to continuously monitor new fracking waste disposal wells by installing seismic monitors. Even without such requirements, oil and gas companies may want to consider collecting baseline data for proposed new fracking sites, research the potential for the geographic region to be susceptible to earthquakes based on naturally occurring geologic characteristics, and continue to monitor seismic activity as they conduct fracking operations to arm themselves with data in order to protect themselves against these claims.