Toxic Tort Fracking Litigation Hits Arkansas
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
303-892-7409
