Lawsuits in the pipeline over ‘fracking’ practices

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Litigation over oil and natural gas industry techniques that include hydraulic fracturing, or “fracking,” is underway across the country and expected to spread.

Over the past few years, the use of fracking to drive natural gas out of shale rock has increased dramatically. The technique involves drilling a hole deep into the rock, then pumping in vast quantities of water mixed with sand and chemicals at very high pressure. This opens up fissures in the rock through which the trapped gas can escape.

Shale rock can be found in over 36 states, including the Marcellus Shale in Pennsylvania, New York, Ohio and West Virginia, the Barnett Shale in Texas, the Fayetteville Shale in Arkansas and the Bakken Shale in Montana. An extensive pocket of natural gas also has been found in shale deposits under a five-county swath of central North Carolina.

“It’s the Klondike Gold Rush of the 21st century,” said William Friedlander, a plaintiffs’ attorney at Friedlander, Friedlander & Arcesi in Ithaca, N.Y., who represents 17 plaintiffs in fracking suits alleging personal injury and nuisance claims.

Nationally, approximately 40 lawsuits have been filed alleging personal injury, nuisance and toxic torts involving land, air and water.

Because fracking has expanded the areas where drilling can profitably take place, it “impacts more people and more people’s water supply,” said Allen Stewart, a toxic torts attorney in Dallas who represents homeowners with water contaminated with methane from drilling.

Lawyers say it is too early to tell how big the litigation could get.

Marc Bern of Napoli, Bern & Ripka in New York, who has lawsuits pending in Colorado, New York, Pennsylvania and West Virginia, suggested that ultimately the litigation may resemble MBTE groundwater contamination litigation, where a handful of law firms specializing in toxic torts handle most of the cases.

But Friedlander, who co-chairs an American Association for Justice litigation group on this topic, says there is plenty of work for a variety of lawyers, from general practitioners to business and contract attorneys to personal injury and mass tort lawyers.

Unpacking ‘fracking’

The fracking process uses a cocktail of over 500 chemicals. In “Gasland,” a 2009 documentary film in which Delaware homeowner Josh Fox investigates the process of fracking after he receives a letter from oil and gas companies offering him $100,000 to lease his land, landowners near fracking operations demonstrate how the process results in faucet water that they can light on fire.

Plaintiffs’ lawyers say that new technologies combining horizontal drilling (where the drill is turned sideways to enable drilling in all directions, like the hand on a clock), and fracking have allowed a much wider swath of territory to be exploited at a cheaper cost than ever before.

“The two technologies have allowed otherwise conventional oil and gas drilling to occur in places we never thought we’d see,” said Julia LeMense, an environmental attorney at Weitz & Luxemberg in New York, who recently spoke at a conference on the topic.

And according to plaintiffs’ attorneys, the industry is taking shortcuts in the rush to explore, drilling wells that allow oil and chemicals to leach into the ground.  “Whether you ever frack it horizontally or vertically, if you don’t do a good job on the well and case it properly, and store or haul the waste properly, and maintain the rig, you’re going to have a problem,” LeMense said.

Bern agreed: “Part of the problem is the oil and gas industry does not do it in the safest way. Instead of taking a little more time to drill wells and make sure they are not penetrable and don’t leak, they do it as quickly as possible.”

Current North Carolina law effectively prohibits fracking through strict limits on the type of substances that can be injected into wells. However, the General Assembly this summer directed the state Department of Environment and Natural Resources to study the viability of fracking and hold hearings on the matter.

Wide array of claims

Thus far, the litigation has produced a wide mix of claims by a range of plaintiffs.

Some landowners who entered into leases with drilling companies are suing over the terms of the lease; some landowners who don’t own the oil or gas rights under their property are suing for nuisance; some are suing for physical injuries such as headaches, nosebleeds, nausea and open skin sores; and some claim diminution in the value of their property as a result of damaged water and air.

In a class action filed on behalf of residents of Battlement Mesa, Colo., Bern is asking for medical monitoring for exposure to toxins.

Stewart represents Texas homeowners who allege they had perfectly fine drinking water until a drilling operation moved into their neighborhood.

“They have water trucked in every week,” said Stewart, whose clients are seeking the loss of value to their property and in some cases punitive damages.

“You gotta have potable water to live,” said Stewart, who is scheduled to try one of his cases in January. “If one resource needs to be protected, it’s our national drinking water.”

One class action in Arkansas alleges fracking caused increased earthquake activity and seeks damages for the decline in real estate values, emotional distress and the cost of earthquake insurance. Some scientists have suggested that the recent earthquake along the east coast is linked to horizontal fracking.

Because under the 2005 Energy Act oil and gas companies are exempt from federal environmental laws like the Safe Drinking Water Act and the Clean Water Act, plaintiffs’ lawyers are forced to proceed under state environmental statutes, Friedlander said.

According to Jennifer Quinn, a defense attorney with Steptoe & Johnson in Washington, D.C., who represents a number of oil and gas companies, claims over groundwater contamination have not played out as expected.

“There are a lot of complaints out there, but they are totally generic with very little specific information as to what chemicals are causing the problem,” said Quinn, who recently spoke at a conference on the topic.

But Bern said the industry is hiding information about which chemicals they use in drilling. The Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, introduced in March by Sen. Robert P. Casey Jr., D-Pa., would require energy companies to disclose the chemicals used in fracking and close the loophole that exempts drilling companies from federal drinking water laws.

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