Earthquakes, Fracking, Disposal Wells ... and Litigation

Toxics Law Reporter™ delivers the most comprehensive, authoritative, and objective coverage of significant developments in toxic tort, hazardous waste, and related insurance litigation, all with...

By Steven M. Sellers

April 26 — A rapid rise in earthquakes in Oklahoma and other states, linked by some scientists to wells injected with waste water from fracking and other oil and gas drilling operations, is fueling litigation over the industry's liability for the seismic events. But the cases face obstacles, lawyers and academics tell Bloomberg BNA.

Plaintiffs' lawyers say tort suits alleging induced earthquakes will be buoyed by a recent one-year seismic hazard forecast issued by the U.S. Geological Service in March. The forecast, which follows a multi-year earthquake rise in several states, warns of damage risks within the coming year from natural and induced seismicity in parts of Arkansas, Colorado, Kansas, New Mexico, Oklahoma and Texas.

Defense lawyers, however, say this and other scientific studies suggest only a “weak” connection between waste disposal wells and man-made or so called “induced” earthquakes—and that plaintiffs will have a tough time proving any damage was caused by a particular well or operator.

The disposal wells are drilled deep underground to deposit fluids—largely saltwater and “flowback”—produced in oil and gas extraction operations.

The crux of the debate, both legally and geologically, turns on whether and how the volume and pressure of injected fluids, particularly in areas with geological faults, may be linked to earthquakes that inflict specific damage above the ground.

injection wells for enhanced production and wastewater disposal

Science, Causation Debated

Plaintiffs' attorney Scott Poynter, of the Poynter Law Group in Little Rock, Ark., told Bloomberg BNA recently the USGS report will strengthen cases against injection well operators for induced earthquakes.

Poynter is counsel in several pending cases over damage allegedly caused by induced earthquakes, including Ladra v. New Dominion LLC, No. CJ-2014-00115, Okla. Dist. Ct., filed 8/4/2014.

In Ladra, the Oklahoma Supreme Court ruled last year that earthquake damages allegedly caused by injection wells must be decided in a trial court, not a state commission that oversees oil and gas operations (, 353 P.3d 529 (Okla. 2015)).

Pretrial proceedings in the case are underway at the trial court level, according to court records.

“I think [the USGS report] is going to be very helpful, and I think it’s a document that would be at the forefront of all of the cases and the experts that testify,” Poynter said.

But defense attorney Daniel McClure, of Norton Rose Fulbright in Houston, told Bloomberg BNA the science doesn't establish a clear causal connection between injection wells and seismicity.

McClure represented an oil and gas industry client against landowner claims, now dismissed, that property damage from an earthquake was caused by a wastewater disposal well in Texas.

“There is no valid scientific evidence that fracking causes seismic events or earthquakes,” McClure said April 20 in an e-mail. “The scientific studies have suggested only a weak relationship between seismic events and wastewater disposal wells, and wastewater is a by-product of many oil and gas wells, not unique to fracking.”

Plaintiffs will have a “huge hurdle” to prove causation and will be hard-pressed to prove any particular earthquake was caused by wastewater and saltwater disposal wells generally, McClure said.

“Many earthquakes occur naturally where no disposal wells are located; many areas thick with disposal wells experience no earthquakes,” McClure said. “Second, it will be extremely difficult, if not impossible, for plaintiffs to prove that any particular wastewater injection well in a field, and any particular operator, caused the particular earthquake event.”

Injection Wells at Issue

The USGS, in its March report, said that “[e]arthquake rates have recently increased markedly in multiple areas of the Central and Eastern United States, especially since 2010, and scientific studies have linked the majority of this increased activity to wastewater injection in deep disposal wells.”

The Eastern and Central U.S. averaged 21 magnitude three (or stronger) earthquakes from 1973 to 2008, according to the USGS Induced Earthquakes website. That rate jumped to 99 per year between 2009 and 2013 and continues to rise.

Magnitude 3 quakes are typically felt by people in the affected area, but seldom cause damage, according to the USGS. But larger earthquakes in 2011, such as a magnitude 5.6 in Prague, Okla., and a 5.3 in Trinidad Colo., did result in damage reports.

Those in the oil and gas industry however, says the USGS report is of limited value.

Any correlation between seismic events and water injection doesn't establish a given well caused a quake, Steven Everley, a senior advisor to Energy in Depth, told Bloomberg BNA.

Energy in Depth is a Washington, D.C.-based organization launched by the Independent Petroleum Association of America in 2009.

“The fact that water injection—be it related to oil and gas or otherwise—can induce seismic events has been known for at least half a century,” Everley said in an e-mail.

“In Oklahoma, scientists have determined that at least some of the seismic activity is due to wastewater injection,” said Everley. “But Oklahoma is also a heavily faulted state, with oil and gas production activities in 70 out of its 77 counties. Does that mean every earthquake in Oklahoma is induced or triggered by injection? Certainly not.”

Everley also said that the number of injection wells potentially linked to earthquakes is “incredibly small.”

In North Dakota and Louisiana, which have numerous injection wells, “there’s no uptick in earthquake activity in either state,” he said.

More research is needed to better understand how to distinguish natural and potentially induced earthquakes, Everley said.

The USGS acknowledged in its March forecast that “a lack of relevant technical information on the geological condition, state of stress, and human industrial activity (such as injection well pumping data) makes it difficult to assess seismic hazard.”

Follow the Fault Line

For his part, Poynter, the plaintiffs' attorney, acknowledges the evidentiary and geological questions inherent in induced seismicity claims. Answers may be found the closer injection wells are to seismic events, Poynter said (30 TXLR 905, 9/17/15).

“It’s not just the injection well that can create a problem,” Poynter said. “You need an injection well that’s over a fault to create the earthquake. Just because there’s an injection well doesn’t mean that down the road there’s going to be an earthquake. You need a fault line.”

Those and other questions will be addressed in litigation by expert witness testimony, Poynter said. “In putting together a case, my experts are going to be relying on the science that relates to that particular cluster of earthquakes.”

The spate of recent earthquakes has also spurred the general public—and presumably juries—to view injection wells with a more critical eye, according to Poynter.

“I think the pendulum has swung in the other direction so that now there’s just a lot more people who have swung in our favor, who agree that the earthquakes are related to the injection wells,” he said.

Leading Edge?

The leading edge of litigation may be in an environmental citizen suit recently filed by the Sierra Club against Chesapeake Operating LLC and other defendants in the Western District of Oklahoma alleging violations of the Resource Conservation and Recovery Act (Sierra Club v. Chesapeake Operating LLC, W.D. Okla., No. 16-cv-00134, filed 2/16/16).

The suit alleges imminent harm to health and the environment posed by injection wells in Oklahoma, a state dotted with about 3,200 injection wells (31 TXLR 349, 4/14/16).

The earthquake risk is aggravated by the location 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 recently filed by Poynter and other lawyers in the case.

Blake Watson, a professor at the University of Dayton Law School in Ohio, who writes extensively on litigation involving hydraulic fracturing, told Bloomberg BNA the USGS one-year forecast may be more helpful to the Sierra Club case than landowner cases.

“That, to my mind, is probably more helpful in their lawsuit than perhaps it would be in suits filed by landowners seeking damages,” said Watson.

That's because, Watson said, “I think the standard that the Sierra Club is going to have to meet under its federal lawsuit under the Resource Conservation and Recovery Act is in some respects a less stringent standard than the common law tort causation standards that attach to negligence, nuisance and strict liability.”

The Sierra Club complaint alleges in part that “if a large earthquake struck the massive oil storage area in Cushing, huge amounts of oil could be released, causing massive environmental damage”.

RCRA cases require proof that the owner or operator of a facility handled, stored, treated, transported or disposed “of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment” (42 U.S.C. §6972(a)(1)(B)).

Chesapeake and other defendants moved to dismiss the case April 25.

Their arguments include that the Oklahoma Corporation Commission has jurisdiction over the state's disposal wells and that RCRA wasn't intended to address environmental threats resulting from seismicity.

The Sierra Club's reply to the motion is pending, according to court records.

Even if gas and oil companies prevail in environmental and tort litigation over injection wells and their alleged link to earthquakes, Watson said he still sees a downside for the energy industry.

“It is the plaintiff’s burden to establish causation, but the more these cases are litigated, the more pressure it puts on the oil and gas industry to respond to this problem,” Watson said.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com and Peter Hayes at phayes@bna.com

 


Pending Cases Involving Induced Quake Claims

 

  • Sierra Club v. Chesapeake Operating LLC, No. 16-cv-00134 (W.D. Okla. filed 2/16/2016) (RCRA citizen suit alleging threatened environmental harm posed by injection well operations in Oklahoma)
  • Cooper v. New Dominion LLC, No. CJ-2015-24 (Okla. Dist. Ct., Lincoln Cty. filed 2/10/2015) (proposed class action for property damage from earthquake allegedly caused by injection wells)
  • Ladra v. New Dominion LLC, No. CJ-2014-00115 (Okla. Dist. Ct., Lincoln Cty. filed 8/4/2014, remanded in 353 P.3d 529 (Okla. 2015))(personal injuries alleged from chimney that collapsed from earthquake)
  • Griggs v. Chesapeake Operating LLC, No. 16-cv-00138 (W.D. Okla. removed 2/16/2016) (proposed landowner class action for earthquake property damage)
  • Felts v. Chesapeake Operating LLC, No. CJ-2016-137 (Okla. Dist. Ct., Okla. Cty. filed 1/11/2016) (plaintiffs allege injection of waste water into wells caused two earthquakes)
  • Dine Citizens Against Ruining Our Env't v. Jewell, No. 15-cv-00209 (D.N.M. filed 3/11/2015) (injunction action alleging dangers of fracking and drilling operations, including earthquakes)