Environmental Toxic Torts Blog : Colorado Property Damage, Class Action & Fracking Lawyer & Attorney : Davis Graham & Stubbs Law Firm

On Thursday, May 26, 2011, Representative Diana DeGette (D – CO), together with Representatives Harry Waxman (D – NY) and Edward Markey (D – MA) requested that the House Committee on Energy and Commerce hold hearings to address the use of hydraulic fracturing in natural gas production.  The Representatives point out that the Committee has not held hearings on hydraulic fracturing over the course of this year, and they hope to inform and educate members of the Committee about recent developments and concerns of fracking.  The letter cites several recent examples of spills and hazards that are a result of fracking.  It also casts doubt about the adequacy and transparency of the industry’s frac-fluid disclosure website.

The letter does not specifically address the need to investigate hydraulic fracturing for use in oil production, but we assume any hearing before Congress will address oil and gas production.  The Niobrara shale play in northern Colorado and southern Wyoming depends on hydraulic fracturing completions for oil production.

As of this post, there has been no response from the Chairman of the Committee, so we do not know when any hearings may take place.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This is the second in a series of blog postings addressing the spate of oil and gas extraction cases filed in the month of May in Arkansas.    Lane v. BHP Billiton Petroleum (Arkansas) Inc. et al., is a class action complaint filed in the Circuit Court of Faulkner County, Arkansas, on May 20, 1010.  Unlike other extraction/fracking cases that allege injury based upon the claimed release and migration of pollutants from extraction or injection well activities, the Lane litigation is premised upon and seeks relief from harm purportedly arising from earthquakes that the Lane plaintiffs contend were caused by oil and gas drilling operations.  Among other things, plaintiffs claim that there have been 599 seismic events in Guy, Arkansas, alone since September 2010, and that the largest earthquake in 25 years, measured at 4.7 magnitude, occurred on February 28, 2011.   

The Lane plaintiffs assert that the earthquakes are related to natural gas extraction processes that involve fracking.  In connection with the increased seismic activity, the plaintiffs contend that the Arkansas Oil and Gas Commission requested a Commission Order shutting down certain injection wells used for injecting fracking water back into the earth.   Plaintiffs claim that "the seismic activity is directly linked and contributed to by defendants' operation and injection wells," and that this substantially and unreasonably interferes with plaintiffs' and the Class' use and enjoyment of their property.   As  in some other recent complaints, the Lane plaintiffs allege that defendants' operations and actions associated with their operation and injection wells are 'ultrahazardous' and subject the defendants to strict or "absolute" liability.

The putative class in the case is identified as all residents of six Arkansas counties, over 100,000 people.   Plaintiffs bring public nuisance, private nuisance, absolute liability, negligence and trespass claims, and seek punitive damages.  Among other claims for relief, Plaintiffs seek injunctive relief "restraining Defendants from engaging in any further conduct that is substantially likely to lead to further seismic activity and to remediate the damages it has already caused. "  In additional to commonly sought damages, plaintiffs seek damages for "the loss of peace of mind" as well as economic loss from business interruption. 

In Lane and other fracking cases, plaintiffs' counsel are attempting to expand the doctrine of strict or absolute liability for ultrahazardous activities into uncharted territory.  Historically, plaintiffs' counsel have raised similar claims in more traditional toxic tort litigation related to the alleged release of contaminants from activities of other industrial and commercial sectors.   These claims are typically challenged by defendants, and are often dismissed.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Three new class action toxic tort fracking cases were filed in May with respect to gas extraction operations in the Fayetteville Shale deposits in central Arkansas.  The three cases illustrate the recent trend of attempting to use traditional and sometimes novel toxic tort theories to pursue common law claims against companies involved in all phases of gas extraction operations.   I will address these cases in a series of postings. 

The first class action lawsuit, Tucker v. Southwestern Energy Company, XTO Energy, Chesapeake Energy Corporation and BHP Billiton Petroleum (Fayetteville), LLC, No. 1:11 CV 44 DPM, was filed on May 17, 2011 in U.S. District court for the Eastern District of Arkansas.  The Tuckers own and reside on  a 10 acre parcel in Quitman, Arkansas.  They allege that gas drilling contaminated their 200' deep drinking water well and that it started to smell like "cotton poison".  The putative class is defined as all citizens, residents, and property owners in the State of Arkansas who live and/or own property within a three mile radius of any boreholes, wellheads or other gas extraction operations operated by defendants  "including any other onsite processes including hydraulic fracturing."    

The Tuckers claim that their testing showed a high level of "Alpha Methylstyrene, a flammable and poisonous component which is a known component of fracking fluids."  The Tuckers contend that their soil, groundwater, water well and air are contaminated, and have asserted strict liability, negligence, nuisance, and trespass claims.  Among other things, the plaintiffs state that they have suffered lost use and enjoyment of their property, "severe diminution" in the value of their property, and "fear, shock, mental distress and physical harm. 

Plaintiffs' complaint requests $1 million in compensatory damages, $5 million in punitive damages, establishment of an environmental monitoring fund and creation of a medical monitoring fund.    

Phillip and Peggy Berry, who also live in Quitman, Arkansas, filed a similar lawsuit in the same federal district court on the same day (Berry v. Southwestern Energy Co., No. 1:11-cv-00045, (E.D. Ark. filed  May 17, 2011).   Two other fracking cases filed in Arkansas in May involve claims for excessive noise and the creation of earthquakes.   These cases will be addressed in future posts.

Posted by Robert Lawrence

robert.lawrence@dgslaw.com

303-892-7409

• Email This
• Print
• Comments
• Trackbacks
• Share Link