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Shale Development and Fracking-Litigation Trends

From Murray Kamionski

Murray Kamionski Despite the intense scrutiny and focus on environmental issues relating to hydraulic fracturing in shale gas playing across the United States, the onslaught of anticipated litigation alleging impacts to human health or the environment has been slower to develop than originally anticipated. Since the first complaints were filed in 2009, more than 40 lawsuits have been filed in state and federal courts alleging some level of harm to person, property or the environment caused by fracking or related activities. The following provides a brief overview of the current state of fracking litigation.

Current Focus: Common Law

The majority of fracking lawsuits filed to date have been filed based on common law theories of liability. The predominant claim by plaintiffs has been that, as a result of fracking of natural gas wells near plaintiffs' property, plaintiffs have suffered medical issues and their property, including groundwater wells, has become contaminated due to the release of contaminants to the land, water and air during the fracking process. Common-law theories of liability that have been asserted include: (1) public nuisance; (2) private nuisance; (3) trespass; (4) negligence; (5) negligence per se; (6) strict liability for abnormally dangerous activities; (7) fraud; (8) indemnification; and (9) contribution.

While a handful of these lawsuits have been dismissed or settled, most remain unresolved. Courts are just beginning to work through issues such as the factual sufficiency of plaintiffs' claims. For example, in Harris v. Devon Energy Production Co., E.D. TX Docket No. 4:2010-cv-00708-MHS-ALM, plaintiffs alleged in their complaint that, in approximately April 2008, the defendant's drilling and fracking operations caused the plaintiffs' groundwater to become polluted with gray sediment. The plaintiffs generally alleged in their complaint that groundwater testing revealed the presence of hazardous substances, some of which are contained in bentonite mud used during well drilling. On Jan. 25, 2012, the court dismissed all claims against Devon Energy on the basis that recent testing of the plaintiffs' groundwater wells showed no contamination present at levels that are toxic for human consumption.

And on Feb. 17, the court in the consolidated cases Tucker v. Southwestern Energy Co. , E.D. AR, Docket No. 4:2011-cv-44-DPM, and Berry v. Southwestern Energy Co. , E.D. AR, Docket No. 4:2011-cv-45-DPM, ordered the plaintiffs to replead their claims. The court stated that the plaintiffs failed to meet the standard articulated by the U.S. Supreme Court in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009), which requires plaintiffs to plead facts sufficient to permit a "court to draw the reasonable inference that the defendant is liable for the misconduct alleged." The Supreme Court in Iqbal stated that a plaintiff must plead facts sufficient to move his or her claims "across the line from conceivable to plausible."

According to the court in Tucker and Berry, the facts alleged in the plaintiffs' complaints were "mostly conclusions and general statements." The court specifically stated that the plaintiffs failed to "allege specific facts tending to show Southwestern Energy did anything to cause" the contamination alleged. While the court chose not to dismiss the plaintiffs' complaints outright, the court has required plaintiffs to file amended complaints that provide "particular facts about particular fracking operations by particular fracking companies using particular substances that allegedly" caused the plaintiffs harm.

More recently, on May 9, a district court in Colorado dismissed with prejudice a toxic tort action involving personal injury and property damage claims arising from well development activities. See Strudley v. Antero Resources Corp ., 2011CV2218 (Denver Dist. Ct. 2011). The court observed that an efficient case management order was appropriate given the significant discovery and cost burdens that would be associated with the case. Accordingly, the court required the plaintiffs to make a prima facie showing of exposure and causation relying upon Lone Pine procedures, which the plaintiffs were unable to do. Interestingly, the court also relied upon an investigation conducted by the Colorado Oil and Gas Conservation Commission, which determined that the plaintiffs' water supply was not affected by the nearby oil and gas activities.

It is possible that, as a result of the increased chemical disclosure requirements states are adopting, as well as the U.S. Environmental Protection Agency's focused studies on the effects of fracking on groundwater, plaintiffs may, in the future, have less difficulty pleading facts sufficient to support their claims. Until that time, the filing of complaints alleging harm from fracking may remain at current levels as plaintiffs struggle to satisfy courts that require plaintiffs to comply with the Iqbal standard.

(To be continued)

Mr. Kamionski has operated a successful solo law practice in Los Angeles for the past 10 years, representing individuals and companies on a variety of civil and criminal matters. He has litigated in federal and state courts in Californiaand serves on several appellate panels. He also practices in Washington, D.C., represemting clients on matters before the D.C. Circuit Court of Appeals. He is Of Counsel to Andrew Hale and Associates, the top police defense firm in Chicago, and maintains the firms presence in California. He may be contacted at

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