Sierra Club Disputes Drillers in Fracking Earthquake Case

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By Steven M. Sellers

May 26 — A citizen suit over earthquakes allegedly induced by wastewater injection wells should proceed, the Sierra Club argued May 25 ( Sierra Club v. Chesapeake Operating LLC, W.D. Okla., No. 16-cv-00134, brief filed 5/25/16 ).

Sierra Club opposes efforts by drillers to dismiss the case in the Western District of Oklahoma.

Three oil and gas companies contend the action, under the Resource Conservation and Recovery Act, should be dismissed to allow the Oklahoma Corporation Commission to exercise its regulatory authority over the wells.

That view ignores federal law and would leave no forum for the environmental claims, Sierra Club says.

The wells, injected with saltwater and “flowback” from fracking and other extraction operations, have spawned litigation in several states, including Oklahoma (31 TXLR 398, 4/28/16).

Chesapeake Operating LLC , Devon Energy Prod. Co. and New Dominion LLC also argue RCRA doesn't apply to induced earthquakes—a reading the Sierra Club says is contrary to the remedial purpose of the law.

“The number of earthquakes in Oklahoma has increased more than 300 fold, from a high of 167 before 2009 to 5,838 in 2015,” and a strong earthquake poses a risk to an oil storage facility in Cushing, Okla., the brief states.

The circumstances qualify as the “imminent and substantial endangerment to health or the environment” RCRA was intended to address, the Sierra Club asserts.

Even if earthquakes are excluded from RCRA, the case should go on because of contamination from “breaching pipes and tanks that carry chemicals, oil, and other polluting substances,” the environmental group says.

The law offices of Federman & Sherwood, as well as Public Justice, the Poynter Law Group, Weitz & Luxenburg, and Steel, Wright & Collier represent the Sierra Club.

McAfee & Taft, as well as Beveridge & Diamond represent Chesapeake Operating LLC.

Crowe & Dunlevy, as well as McGuire Woods represent Devon Energy Production Co.

Gum Puckett & MacKechnie represent New Dominion LLC.

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

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Nicholas Datlowe at ndatlowe@bna.com