Whole Lot of Shakin' Going On: Fracking and Seismic Activity Claims
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.
