Hydrauling fracking (also known as “fracturing”) has been a practice of fossil fuel providers for decades. It has been in practice since 1949, and analysts estimate that globally, some 60% of new oil or gas reservoirs and wells were located and mined using hydraulic fracking technology. Montgomery, Carl T. & Smith, Michael B. “Hydraulic fracturing. History of an enduring technology,” Society of Petroleum Engineers 26–41 (2010-12-105). Recently, however, a controversy has arisen between the benefits of the fracking process and its potential environmental implications. Legislation, proposed legislation, and litigation have ensued, all echoing a certain call: that the legal community is in dire need of an educated understanding of fracking, and expert witnesses are the very people to give us that lesson.
Recently, Congress asked the Environmental Protection Agency (EPA) to assess and study potential implications of hydraulic fracking on drinking and ground water supplies. “EPA’s Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources,” http://www.epa.gov/hfstudy/index.html (Feb. 13 2013). Concerns have even arisen over recent earthquakes and whether or not hydraulic fracking may have been a cause of those disasters. A new study by earthquake and engineering experts indicates that a 2011 earthquake in Oklahoma with a magnitude of 5.7 on the Richter scale may very well have resulted from hydraulic fracking. Fountain, Henry, “Study Links 2011 Quake to Technique at Oil Wells,” New York Times (Mar. 28, 2013). Many states, including Texas, Illinois, and New York have considered or are in the process of considering anti-fracking litigation. So, what does today’s litigator need to know to try or defend cases involving hydraulic fracking? That’s simple: Ask the experts. The more difficult question is who to ask and what needs to be understood, synthesized, and made clear to potential juries.
It must be determined who the possible litigants are, in order for attorneys to retain and prepare the best experts in the field, no matter which side is represented. Prospective plaintiffs include the U.S. government, individual states, communities, and even people who feel they were somehow negatively affected and sustained an injury from fracking. The defendants in these cases can vary from those entities that drill for oil using fracking, to companies that are responsible for wastewater disposal. Major oil and natural gas providers may, directly or indirectly, be implicated. Some have even cited Halliburton as a hypothetical defendant in a fracking case. Clearly, the amount (both in terms of numbers of cases and damages figures) of litigation is substantial and possibly of epoch proportions. Whether representing a defendant or plaintiff, attorneys need to know how to handle these increasingly important cases. Earthquake experts and seismologists, chemical engineers, and oil and natural gas experts play an invaluable role.
Disputes over hydraulic fracking are largely science, which is why they are best left to expert witnesses, but explaining the pros and cons of fracking is something of an art. The best witnesses, whom attorneys should retain early and consult often in litigation of this type, can help a jury understand the logic behind the arguments or, more importantly, the arguments themselves.
For attorneys who do not understand the widespread implications of fracking litigation, here are some facts that may make even the most seasoned litigator take pause: Fracking is such a “hot-button” legal issue that many states have or are considering giving rise to actions against the potential defendants aforementioned. The following states recognize causes of action (from negligence to unjust enrichment), when a plaintiff alleges that they were harmed by hydraulic fracking:
- Arkansas (tort, NEPA1)
- Colorado (tort, preemption)
- Louisiana (tort, unjust enrichment)
- New York (tort, preemption; contract)
- Ohio (contract; tort)
- Pennsylvania (tort; contract; Pennsylvania statutory citizens suit)
- Texas (tort; EPA authority under the SDWA2)
- West Virginia (tort, preemption).3
Moreover, the following states have counties (or statewide measures) that are considered “anti-fracking” measures, in that they either provide for causes of action against the aforementioned defendants or ban elements of hydraulic fracking in its entirety:
- Indian Country4
- New Jersey
- New Mexico
- New York
- North Carolina
- West Virginia
At this point, the importance of hydraulic fracking and its potential litigation impacts should be crystal clear, but three natural questions remain for typical litigators: (1). What exactly is hydraulic fracking, (2). What are its pros and cons, and (3). What kind of experts are needed in this area?
Hydraulic fracking is best explained as an often-used completion process that permits energy producers to recover fossil fuels, specifically oil and natural gas. The EPA provides a helpful chart to explain the very basics to attorneys and laypeople, but it is no substitute for the explanation and knowledge of an expert witness.
The pros and cons of fracking are what make it a highly debatable and divisive issue. Experts differ on its environmental impacts. Some argue that, “Critics of fracking often raise alarms about groundwater pollution, air pollution, and cancer risks, and there are still many uncertainties. But some of the claims have little — or nothing — to back them.” “Fracking Critics Using Bad Science, Experts Say,” Associated Press (Jul. 30, 2012). On the other hand, the EPA has been joined by hundreds of pro-environment organizations, in establishing some form of a causal link between the waste/groundwater damage that fracking may create and the harms that ensue to the environment and society. See EPA, supra. Moreover, fracking is neither a clean nor simple matter; some experts argue that fracking helps increase carbon or carbon dioxide emissions into the environment, while others have gone so far as to argue that it can cause breast cancer.
What is the answer? As a legal community, we don’t know for certain. However, no matter which side of the debate attorneys end up on, the necessity for expert witness testimony and knowledge regarding hydraulic fracking is indisputable. Scientific expertise of all kinds is necessary, no matter what the issue relating to fracking is. Attorneys will require experts, ranging from petroleum engineers, to oil industry expert witnesses, to earthquake experts. To be safe, attorneys must become educated about this matter themselves, but they should never take their own expertise on such a highly scientific matter for granted. While an expert can explain, in understandable language, precisely what is or is not the problem pertaining to hydraulic fracking, attorneys who rely only on self-expertise will be behind, both in terms of the individual cases and the trend itself, which indicates a substantial increase in fracking litigation and the potential for the attorneys with the appropriate experts to excel in this field.
The Hydraulic Fracturing Water Cycle
1 NEPA = National Environmental Protection Act
2 SDWA = Safe Drinking Water Act. Both of these acts come under federal legislation but are enforced by the states in specific manners. The states listed recognize causes of action under these federal statutes.
3 See “Fracking Litigation Update,” a presentation and written discussion by the law firm of Davis, Graham, Stubbs, LLP, http://www.dgslaw.com/images/materials/CHWMS-Wurtzler-041012.pdf (retrieved Apr. 8, 2013).
4 These are typically known as “reservations” and, while in the fifty states and part of the U.S., are tribal or indigenous lands that are federally controlled and subsidized. Two indigenous areas have passed anti-fracking measures, to date.
5 “Local Actions Against Fracking: Passed Measures,” Food & Water Watch, http://www.foodandwaterwatch.org/water/fracking/fracking-action-center/local-action-documents/ (retrieved Apr. 08, 2013).
By: Kat Hatziavramidis, Attorney-at-Law