Recent Quake May Rattle Oklahoma Fracking Case

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By Steven M. Sellers

Sept. 6 — A new magnitude 5.6 earthquake near Pawnee, Oklahoma should boost the Sierra Club's legal arguments that fracking and other underground oil and gas activities pose imminent risks to the environment, the advocacy group says.

The Sept. 3 earthquake is the latest in a string of seismic events in Oklahoma since 2009, according to the U.S. Geological Service. Its strength matches a 5.6 temblor in 2011 that hit another Oklahoma town, about 68 miles to the south.

“This is reminiscent of the earthquake in Prague," Scott Poynter, of the Poynter Law Group in Little Rock, Ark., told Bloomberg BNA Sept. 6.

Poynter is counsel for the Sierra Club in a suit challenging fracking operations in Oklahoma, Sierra Club v. Chesapeake Operating LLC, W.D. Okla., No. 16-cv-00134, filed 2/16/16.

The Sierra Club brought the case in February against four oil and gas companies under the Resource Conservation and Recovery Act, a federal law governing solid waste disposals.

Co-counsel Richard Webster, of Public Justice in Washington, D.C. told Bloomberg BNA Sept. 6 “our claims allege danger to health and the environment.”

“This quake illustrates that both risks are real,” Webster said in an e-mail.

Defendants in the case include Chesapeake Operating LLC, Devon Energy Production Co., New Dominion LLC and Sandridge Exploration and Production LLC.

Gordon Pennoyer, Director of Communications & Investor Relations for Chesapeake Operating LLC declined to comment.

Requests for comment from counsel for the companies wasn’t successful Sept. 6.

Energy Companies Seek Dismissal

The citizen suit asks the Western District of Oklahoma to order substantial reductions in the amount of wastewater pumped into underground wells in the state, among other steps.

The complaint alleges the spike in earthquakes stems from the injection of wastewater from fracking and other oil and gas development activities into thousands of deep wells around Oklahoma.

The companies contend, however, that the case should be dismissed to allow the Oklahoma Corporation Commission to exercise its regulatory authority over the state’s disposal wells.

Poynter said the Sept. 3 quake shows that the courts shouldn't wait for the state agency to act.

“In moving to dismiss the RCRA lawsuit, the defendants told the federal court to not interfere with the Oklahoma Corporation Commission, that it was doing its job, what the OCC was doing was working, and no more threat existed,” Poynter said.

“Obviously, that has been proven untrue,” Poynter said. “Moreover, our experts tell us the threat of even larger earthquakes still loom.”

That risk includes a possible breach of a major oil tank farm in Cushing, Okla., a facility that holds millions of barrels of crude oil for distribution, according to an amended complaint filed in the case.

“I haven’t seen any reports of damage at the oil field in Cushing” yet, Poynter said. But, “This just happened over the Labor Day weekend, and we just don’t know right now. They may be doing the assessments now.”

The OCC says on a notice posted to its website that the commission is in the process of ordering the shutdown of disposal wells within a 211 square mile area around Pawnee.

Causation Questions Linger

A central question in the litigation concerns whether the recent earthquakes in Oklahoma, like the one in Prague, and now the one in Pawnee, were really caused by the nearby fracking-related disposal wells.

In a recent motion to dismiss the case, for example, New Dominion LLC argues that “general assumptions regarding apparent correlations between wastewater disposal and seismicity” may “yet turn out to be inaccurate.”

Yet, the Sept. 3 quake is consistent with a recent wave of earthquake activity over the last seven years and some studies link the trend to fracking, according to a USGS website on the event.

“Scientific studies have linked the majority of this increased activity to wastewater injection in deep disposal wells in several locations,” according to the USGS.

But the USGS also said it was too early to say whether the quake was caused by other factors, or that it was caused by human activity at all.

“Making a strong scientific case for a causative link between a particular human activity and a particular sequence of earthquakes typically involves special studies devoted specifically to the question,” the USGS said.

A decision on the companies’ motions to dismiss is pending.

By Steven M. Sellers

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