Fracking contamination and litigation—case law update

Fracking contamination and litigation—case law update by Andy Jacoby, March 21, 2013, ABA Section on Environment, Energy, and Resources, 42nd Annual Spring Conference, Salt Lake City, Utah
Strict Liability – special considerations for fracking
There is an open question whether courts will apply strict liability to fracking operations. Strict liability is important because where it is applied liability will attach even if the operator was acting without negligence. In this instance, the one meaningful hurdle is establishing causation. Courts will apply strict liability if they rule that fracking is “ultrahazardous” or “abnormally dangerous.” Fracking brings unique highpressure injections and explosive charges that are similar to blasting, and while previous courts have ruled oilfield operations as not “abnormally dangerous,” it is not impossible that some courts could be swayed by this new method of extraction and production.

Conclusion
When speaking of man’s impact on the web-of-life relationships among the plants, the earth, and the animals, Rachel Carson taught us that “sometimes we have no choice but to disturb these relationships, but we should do so thoughtfully, with full awareness that what we do may have consequences remote in time and place.” As it stands now, we know little about the risks and long-term impacts of fracking, and regulations applying to fracking are inadequate at the precise moment we are launching into a massive drilling boom. So it is debatable that we are embarking on fracking thoughtfully and with full awareness of the remote consequences, as Carson would have cautioned. Nevertheless, tort and contract litigation may have the incidental effect of serving as a disincentive for oil companies to operate prudently. [Emphasis added]

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