Read the rest of this excellent article here.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. The following provides a brief overview of the current state of fracking litigation.
Current Focus: Common LawThe majority of fracking lawsuits filed to date have been filed based on common law theories of liability. The predominant claim by plaintiffs has been that, as a result of fracking of natural gas wells located near plaintiffs' property, plaintiffs have suffered medical issues and their property, including groundwater wells, has become contaminated due to the release of contaminants to the land, water and air during the fracking process. Common-law theories of liability that have been asserted include: (1) public nuisance; (2) private nuisance; (3) trespass; (4) negligence; (5) negligence per se; (6) strict liability for abnormally dangerous activities; (7) fraud; (8) indemnification; and (9) contribution.While a handful of these lawsuits have been dismissed or settled, most remain unresolved. Courts are just beginning to work through issues such as the factual sufficiency of plaintiffs' claims. For example, in Harris v. Devon Energy Production Co. , E.D. TX Docket No. 4:2010-cv-00708-MHS-ALM, plaintiffs alleged in their complaint that, in approximately April 2008, the defendant's drilling and fracking operations caused the plaintiffs' groundwater to become polluted with gray sediment. The plaintiffs generally alleged in their complaint that groundwater testing revealed the presence of hazardous substances, some of which are contained in bentonite mud used during well drilling. On Jan. 25, 2012, the court dismissed all claims against Devon Energy on the basis that recent testing of the plaintiffs' groundwater wells showed no contamination present at levels that are toxic for human consumption.
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