Shale Development and Fracking Litigation Trends

Shale Development and Fracking Litigation Trends by Margaret Anne Hill, Mary Ann Mullaney and Heather L. Demirjian, July 31, 2012, The Legal Intelligencer
Despite the intense scrutiny and focus on environmental issues relating to hydraulic fracturing in shale gas plays across the United States, the onslaught of anticipated litigation alleging impacts to human health or the environment has been slower to develop than originally anticipated. Since the first complaints were filed in 2009, there have been more than 40 lawsuits filed in state and federal courts alleging some level of harm to person, property or the environment caused by fracking or related activities. …
Current Focus: Common Law
… More recently, on May 9, a district court in Colorado dismissed with prejudice a toxic tort action involving personal injury and property damage claims arising from well development activities. See Strudley v. Antero Resources Corp ., …. The court observed that an efficient case management order was appropriate given the significant discovery and cost burdens that would be associated with the case. Accordingly, the court required the plaintiffs to make a prima facie showing of exposure and causation relying upon Lone Pine procedures, which the plaintiffs were unable to do. Interestingly, the court also relied upon an investigation conducted by the Colorado Oil and Gas Conservation Commission, which determined that the plaintiffs’ water supply was not affected by the nearby oil and gas activities. It is possible that, as a result of the increased chemical disclosure requirements states are adopting, as well as the U.S. Environmental Protection Agency’s focused studies on the effects of fracking on groundwater, plaintiffs may, in the future, have less difficulty pleading facts sufficient to support their claims. Until that time, the filing of complaints alleging harm from fracking may remain at current levels as plaintiffs struggle to satisfy courts that require plaintiffs to comply with the Iqbal standard.
The Future: Statutory Claims
Plaintiffs have a more limited right to assert statutory claims in connection with fracking, as evidenced by the fact that only a few such claims have been asserted to date. The right to file a claim under a state or federal environmental statute must be specifically set forth in that statute or it cannot be alleged. This is in contrast with a plaintiff’s ability to assert a common-law claim of negligence per se for the alleged violation of a statute. See Fiorentino v. Cabot Oil and Gas Corp ., et al. …
Questions Still Unanswered
… One of the most significant questions at this time centers on the potential impact of increased chemical disclosure requirements and the results of the EPA’s groundwater contamination studies on fracking litigation. These two issues alone have the potential to derail fracking litigation in its entirety, or to provide the significant basis for plaintiffs to assert their claims of harm from fracking that is otherwise missing at this time.

This entry was posted in Global Frac News, Other Lawsuits. Bookmark the permalink.