14.1 Introduction

Over the past four decades, there has been a robust increase in laws affecting environmental harm and issues, which in turn has given rise to the field of environmental law. Prior to the 1970s, such laws were virtually nonexistent, leaving the legal system to rely principally on what is characterized as tort law that was the principal legal mechanism for remedying harms to the environment and to right environmental wrongs. Considering the complexities of environmental harms in general, and the actual or perceived inadequacies of common law, policy makers such as the Congress have enacted wide‐ranging laws that provide legal remedies. Since 1970, the legal landscape has become densely populated with targeted federal legislation governing hazardous wastes, water and air pollution, species endangerment and extinction, ocean dumping, oil pollution, and toxic spills, with the United States Environmental Protection Agency (US EPA) being established and empowered to establish, implement, and enforce regulatory standards.

Since the commencement of the shale revolution, there has been an increasing number of litigation cases generated evolving around well stimulation associated directly or indirectly with hydraulic fracturing. Such litigation revolves around several elements including civil tort actions, citizen suits, government enforcement actions, freedom of information lawsuits, oil and gas disputes, contract disputes, other land use and property rights disputes, and constitutional claims (Table 14.1). Legal challenges to municipal actions, agency actions or lack of action, and state and federal laws and regulations have also been pursued. Another element to the shale revolution has been the rise of significant private law litigation by homeowners and others who claim to have suffered loss as a result of the oil and gas industry’s operations.

As of 2009, there were over 50 lawsuits filed alleging some degree of contamination from hydraulic fracturing activities. These lawsuits were filed in Pennsylvania (15), Texas (14), Arkansas (7), West Virginia (6), Ohio (3), Louisiana (3), and Colorado (3). Most of these were in their early stages with no conclusion or finding of contamination. In fact, 18 cases were settled, 16 motions to dismiss were filed with 5 granted, 6 motions for summary judgment were filed with 3 granted, and 3 cases were voluntarily dismissed. As of 2011, not one legal judgment has been noted against an operator, drilling contractor, or service company, for contamination of groundwater from hydraulic fracturing activities, and since 2009 the number of lawsuits has more than doubled. Furthermore, during the period from 2009 to 2011, plaintiffs have filed at least 35 actions in Arkansas, California, Colorado, Louisiana, New York, Ohio, Pennsylvania, Texas, and West Virginia alleging actual or potential impacts to water supplies from hydraulic fracturing:

• Arkansas: Ginardi v. Frontier Gas Services, LLC, No. 11‐CV‐0420 (E.D. Ark. filed 17 May 2011); Tucker v. Southwestern Energy Co., No. 11‐CV‐0044 (E.D. Ark. filed 17 May 2011); Berry v. Southwestern Energy Co., No. 11‐CV‐0045 (E.D. Ark. filed 17 May 2011); Ozark Society v. U.S. Forest Service, No. 4 : 11‐CV‐00425 (E.D. Ark. filed 19 May 2011).
• California: Center for Biology Diversity v. BLM, No. 11‐CV ‐6174 (N.D. Cal. filed 8 December 2011); Ctr. for Biological Diversity v. Jewell, No. 13‐CV‐1749 (N.D. Cal., filed April 2013).
• Colorado: Strudley v. Antero Resources Corp., No. 2011‐CV‐22 (Denver Co. Dist. Ct. filed 23 March 2011); Evenson v. Antero Resources Corp., No. 2011‐CV‐5118 (Denver Co. Dist. Ct. filed 20 July 2011). In addition, a landowner asked the Colorado Oil and Gas Conservation Commission to issue an Order Finding Violation against an oil and gas operator on the ground that its hydraulic fracturing operations had degraded his well water. In the Matter of the Alleged Violation of the Rules and Regulations of the Colorado Oil and Gas Conservation Commission, No. 1102‐OV‐04 (COGCC filed 23 March 2011), available at http://cogcc.state.co.us/orders/orders/1V/363/html.
• Louisiana: Teekell v. Chesapeake Operating, Inc., No. 555703 (La. Dist. Ct., Caddo Parish filed 8 December 2011) (removed to W.D. La. on 12 January 2012 as No. 12‐CV‐0044).
• New York: Maring v. Nalbone, No. K12009001499 (N.Y. Sup. Ct. Chautauqua Co. filed 27 August 2009); Baker v. Anschutz Exploration Corp., No. 10‐CV‐61190 (N.Y. Sup. Ct. Chemung Co. filed 9 March 2011); State of New York v. United States Army Corps of Engineers, No. 11‐CV‐2599 (E.D.N.Y. filed 31 May 2011); Delaware Riverkeeper Network v. United States Army Corps of Engineers, No. 11‐CV‐3780 (E.D.N.Y. filed 4 August 2011); Sierra Club v. Village of Painted Post, No. 2012‐0810CV (N.Y. Sup. Ct. Steuben Co. filed 15 June 2012).
• Ohio: Managan v. Landmark 4, LLC, (N.D. Ohio filed 12 March 2012); Boggs v. Landmark 4, LLC, (N.D. Ohio filed 12 March 2012); Koonce v. Chesapeake Exploration, LLC, No. 12‐CV‐0736 (N.D. Ohio filed 27 March 2012).
• Pennsylvania: Fiorentino v. Cabot Oil & Gas Corp., No. 09‐CV‐2284 (M.D. Pa. filed 19 November 2009); Zimmerman v. Atlas America, LLC, No. 2009–7564 (Pa. Ct. Com. Pl. filed 21 September 2009); Berish v. Southwestern Energy Production Co., No. 10‐CV‐1981 (M.D. Pa. filed 29 September 2010); Armstrong v. Chesapeake Appalachia, LLC, No. 3 : 10‐CV‐2453 (M.D. Pa. filed 6 December 2010) (remanded to Pa. Ct. Com. Pl. on 29 July 2011 as No. 10‐CV‐000680); Dillon v. Antero Resources, No. 11‐CV‐1038 (W.D. Pa. filed 11 August 2011); Beca v. Antero Resources, No. 11‐CV‐1040 (W.D. Pa. filed 12 August 2011); Kamuck v. Shell Energy Holdings GP, LLC, No. 4 : 11‐CV‐1425 (M.D. Pa. filed 3 August 2011).
• Texas: Scoma v. Chesapeake Energy Corp., No. 10‐CV‐1385 (N.D. Tex. Filed 15 July 2010); Sizelove v. Williams Production Co., No. 10‐50355‐367 (Denton Co. Dist. Ct. filed 3 November 2010) (water claims subsequently dropped); Heinkel‐Wolfe v. Williams Production Co., No. 10‐40355‐362 (Denton Co. Dist. Ct. filed 3 November 2010) (water claims subsequently dropped); Mitchell v. EnCana Oil & Gas, Inc., No. 10‐CV‐2555 (N.D. Tex. filed 15 December 2010); Harris v. Devon Energy Prod. Co., No. 10‐CV‐0708 (E.D. Tex. filed 22 December 2010); United States v. Range Production Co., No. 3 : 11‐CV‐00116 (N.D. Tex. filed 18 January 2011); Smith v. Devon Energy Prod. Co., No. 4 : 11‐CV‐00104 (E.D. Tex. filed 13 January 2011); Parr v. Aruba Petroleum, Inc., No. 11‐1650 (Dallas Co. Dist. Ct. filed 8 March 2011); Knoll v. XTO Energy, Inc, No. 2010‐10345‐16 (Denton Co. Dist. Ct. filed 17 June 2011) (water claims subsequently dropped); Lipsky v. Range Prod. Corp., No. CV11‐0798 (Parker Co. Dist. Ct. filed 20 June 2011).
• West Virginia: Hagy v. Equitable Prod. Co., No. 10‐CV‐13722 (S.D. W. Va. filed 10 December 2010).

Most of these cases were filed by individual landowners who had either leased oil and gas rights to the defendants or resided in the general vicinity of a particular well site. The plaintiffs typically assert tort and sometimes contract and fraud claims based upon alleged impacts to water quality. Some cases were filed as class actions (Ginardi v. Frontier Gas Services, LLC), and a few allege violations of the National Environmental Policy Act (NEPA) or its state counterparts (Ozark Society v. U.S. Forest Service; Center for Biology Diversity v. BLM; State of New York v. United States Army Corps of Engineers; Delaware Riverkeeper Network v. United States Army Corps of Engineers; Sierra Club v. Village of Painted Post). The US EPA and state agencies have brought several government enforcement actions (United States v. Range Production Co.), and a growing number of cases are raising preemption issues (COGCC v. City of Longmont; Anschutz Exploration Corp. v. Town of Dryden; Cooperestown Holstein Corp. v. Town of Middlefield; Robinson Township v. Commonwealth of Pennsylvania; Northeast National Energy, LLC v. City of Morgantown).

These lawsuits can generally fall into four categories:

1. Contamination/tort.
2. Infrastructure.
3. Environmental/citizen action and industry challenge.
4. Traditional oil and gas in nontraditional forums.

The most common causes of action include:

• Nuisance (public and private).
• Trespass.
• Negligence.
• Negligence per se.
• Gross negligence.
• Strict liability for ultra‐hazardous activities and abnormally dangerous activities.

Less common causes of actions include:

• Breach of contract
• Negligent misrepresentation
• Fraud
• Unjust enrichment
• Impairment of use of property
• Deceptive trade practices
• Premises liability
• Fear of developing cancer
• Battery
• Intentional infliction of emotional distress

14.2 Environmental Tort Litigation

Of all the categories of litigation involving hydraulic fracturing, civil tort actions make up the preponderance of legal actions. Tort litigation hotspots include the Marcellus Shale in the northeast, Barnett Shale in Texas, Piceance Basin in Colorado, and the Fayetteville Shale in Arkansas. This may over time incorporate the case studies presented by US EPA’s in their case studies that were incorporated in their 2016 assessment of the impacts from hydraulic fracturing water cycle on drinking water resources.

These types of claims extend across a range of torts, including trespass and nuisance law, and have covered a number of different types of alleged harm from drinking contaminated water to adverse impact on human health from air pollution. With shale‐related litigation, there is a general assertion of soil, air, and groundwater contamination. In toxic tort litigation, one of the major issues to be determined is whether the plaintiff was exposed to a harmful substance, and if so, whether such exposure caused the plaintiff harm. Where the issue of exposure and causation are potentially dispositive, some courts have issued special case management orders requiring plaintiffs to make a prima facie showing on them before discovery may proceed. These special categories of case management orders originated in the case of Lore v. Lone Pine Corporation and are typically known as “Lone Pine” orders (refer to Avila v. Willits Environ. Remediation Inst., 633 F.3d 828, 833‐34 (9th Cir. 2011); Acuna v. Brown & Root, 200 F.3d 335, 340 (5th Cir. 2000); Schwan v. CHN America LLC, No. 4:04CV3384, 2007 WL 1345193, at *2 (D. Neb. 11 April 2007); Wilcox v. Homestake Mining Co., No. CIV04‐534; 2008 WL 4697013, at *1 (D.N.M. 23 October 2008)). Although there are numerous variations, Lone Pine orders typically require plaintiffs, prior to the initiation of discovery, to provide some minimal level of evidentiary support for their causation claims by coming forward with “basic facts” they should have had before filing their claims – exposure, causation, and damages. The underlying rationale is to conserve both judicial and party resources by weeding out meritless claims and narrowing and focusing potentially massive discovery. This helps in laying a foundation for potentially dispositive summary judgment or Daubert motions and giving both sides a more informed basis for evaluating the strengths and weaknesses of their cases in considering settlement. Defendants have sought Lone Pine orders in several cases involving hydraulic fracturing that include cases in Arkansas and West Virginia (refer to Strudley v. Antero Resources, Corp.).

The Colorado state court issued a Lone Pine order in Strudley v. Antero Resources Corp. Before full discovery or other pre‐trial activities could proceed, the order required plaintiffs to make a prima facie showing of exposure, injury, and causation. The court issued the order because of “the significant discovery and cost burdens presented by a case of this nature” and because “ultimately [plaintiffs] would need to come forward with this data and expert opinions in order to establish their claims.” The court also “relied on” an investigation by the COGCC which determined that “[p]laintiffs” well water was not affected by oil and gas operations” and on affidavits from defendants that “that their activities were conducted in compliance with applicable laws and regulations.” The plaintiffs in response submitted some sampling data, letters from a chemist stating equivocally that the sampling results could be consistent with gas well contamination and a toxicologist’s affidavit noting a temporal connection between plaintiffs’ injuries and defendants’ activities and recommending that discovery proceed. The court however found this insufficient to establish the prima facie elements of plaintiffs’ case as required by the order stating “all [plaintiffs’ expert] conclusively opines on is that ‘sufficient environmental and health information exists to merit further substantive discovery.’ Significantly, [plaintiffs’ expert] makes no opinion as to whether exposure was a contributing factor to [p]laintiffs’ alleged injuries or illness…. Plaintiffs’ requested march towards discovery without some adequate proof of causation of injury is precisely what the [Lone Pine order] was meant to curtail.” Accordingly, the court dismissed plaintiff’s claims with prejudice. That decision is currently on appeal.

Induced seismicity from hydraulic fracturing and associated wastewater disposal activities come under environmental contamination/tort law. In Hearn v. BHP Billiton Petroleum (Arkansas) Inc., a class action complaint was brought on behalf of the plaintiffs and other similarly situated residents of Central Arkansas that have experienced the recent earthquakes in Arkansas and alleged to be directly linked and contributed to the operations and injection wells. These types of lawsuits are gaining traction in Texas, Oklahoma, and Ohio.

14.3 Environmental/Citizen Action and Industry Challenges Litigation

In these cases the court is being asked to enforce compliance with environmental statutes and regulations. Enforcement of compliance by industry includes permitting, air emissions, and waste water disposal, whereas government compliance is associated with environmental impact statements and mandatory public participation, acting within the scope of statutory authority and preemption specifically, under the Clean Air Act – Title V Permitting, regulating “major sources” of air emissions as defined in 40 CFR Part 52, Section 52.21(b) where traditionally, individual wells and other smaller related facilities, standing alone, do not produce enough emissions to qualify as “major sources.” Citizen and environmental action groups seek to change this by “aggregating” the collective emissions of such smaller facilities to determine applicability of Title V permitting requirements. Specifically, they seek aggregation of emissions from wells, pipelines, compressor stations, and treatment facilities (refer to Summit Petroleum Corp. v. EPA; Citizens for Pennsylvania’s Future v. Ultra Resources, Inc.; Center for Biological Diversity v. BLM; and Northeast Natural Energy LLC v. The City of Morgantown, West Virginia).

Suits challenging federal land leases and agency process are included under this category of lawsuits. In Center for Biological Diversity v. BLM, environmental groups challenged Bureau of Land Management (BLM)’s decision to lease federal lands in the Monterey Shale for oil and gas development. The plaintiffs claimed BLM did not follow the NEPA and Mineral Leasing Act because BLM relied on an earlier environmental assessment that did not consider specific impact of hydraulic fracturing and horizontal drilling. The Court granted summary judgment and held that BLM violated NEPA. This case may prompt similar lawsuits nationwide against leases of federal land. In Center for Biological Diversity v. Jewell, the plaintiffs asserted a NEPA challenge to the sale by the BLM of oil and gas leases for almost 18 000 acres of federal land in California. The plaintiffs alleged that in asserting that only one well would be drilled on each acre, BLM failed to address the potential impacts of hydraulic fracturing on water and air quality and other resources. In Center for Biological Diversity v. California Department of Conservation, the Center for Biological Diversity commenced this action seeking declaratory and injunctive relief in connection with the permitting practices of the Division of Oil, Gas, and Geothermal Resources (DOGGR) of the California Department of Conservation. The plaintiff alleged that DOGGR issued permits for oil and gas operations in violation of California’s underground injection control program and in violation of DOGGR’s mandate under the California Public Resources Code to approve and supervise all oil and gas extraction so as to prevent, as far as possible, damage to life, health, property, and natural resources.

In Summit Petroleum Corp. v. EPA, Summit appealed the US EPA’s determination that certain of its facilities in Michigan are subject to Title V permitting requirements. US EPA arrived at this decision by aggregating the facilities’ collective emissions (100 wells, plus a sweetening plant). The facilities at issue are dispersed throughout a 43 mile² geographical area that incorporates three different fields, with each field supplying a common sweetening plant. In a 2‐1 decision issued in August of 2012, the Sixth Circuit vacated the US EPA’s order. The Court recognized that the statute allowed only “adjacent” facilities to be aggregated and that “adjacent” meant facilities that were located in very close physical proximity – it was not enough that facilities were operationally related to each other. The majority held that it did not matter that the US EPA had a longstanding practice of aggregating related facilities. The dissenting judge emphasized the need to defer to agency interpretation of statutes. After the decision, the US EPA published a memo, stating that it will continue to aggregate related facilities (even if not in close proximity) outside the Sixth Circuit’s jurisdiction.

14.4 Infrastructure‐Related Litigation

Significant infrastructure and assets are necessary to support oil and gas extraction activities and development. Such infrastructure and assets such as pipelines and other large‐scale projects can result in lawsuits related to land use, condemnation, and eminent domain. In what is referred to as the Denbury decision, the Texas Supreme Court in 2011 held that a permit did not automatically establish a pipeline as a common carrier and the pipeline did not prove (at summary judgment) that it would transport gas to non‐affiliated customers (leaving its eminent domain powers uncertain). The scope of the decision was deemed unclear by some and created uncertainty as to scope of pipelines’ eminent domain powers.

14.5 Traditional Oil and Gas Issues in Nontraditional Forums

“Traditional” oil and gas states such as Texas and Louisiana have well‐developed law on oil and gas issues. Oil and notably shale gas development occurring in “nontraditional” states may yield unpredictable results. Issues include mineral owner/royalty rights, rights and responsibilities of mineral and surface owners, and the interpretation of contracts specific to oil and gas development (area of mutual interests, joint operating agreements, leases). For example, with royalty valuation disputes, what constitutes deductible (“royalty bearing”) costs? States often look to the law of states with more well‐developed doctrine, but this is not a given, and the laws of many “traditional” oil and gas states are in conflict. In Butler v. Charles Powers Estate, the issue was whether a deed conveyed interest in shale gas when it contained a reservation for “minerals and petroleum oils.” Stated simply, the Dunham Rule is a rebuttable presumption that if in connection with a conveyance of land there is a reservation or an exception of “minerals” without any specific mention of natural gas or oil, then the word “minerals” was not intended by the parties to include natural gas or oil. In trial court it was noted that the reservation did not include shale gas. In intermediate court, the decision was reversed and remanded, noting that shale gas may be different than traditional gas (and more like coal bed methane) and therefore beyond the scope of the Dunham Rule. Pa Supreme Court eventually issued an opinion, reversing the intermediate court and reinstating the trial court’s judgment, and concluded that the Dunham Rule applies to shale gas – it is still natural gas, even if it is trapped in shale and developed through hydraulic fracturing.

In Coastal Oil and Gas Corp. v. Garza Energy Trust, the plaintiffs sued the operator for damages when operator conducted hydraulic fracturing that extended into their mineral estate. The Texas Supreme Court held that damages were barred by rule of capture – stimulation of tight formations was not materially different than recovery of oil or gas through traditional methods. Four rationales for holding are below:

1. Owner could drill its own well to recover gas, and gas would be unrecoverable but for hydraulic fracturing.
2. Allowing recovery would usurp the authority of the Railroad Commission.
3. Damages would be difficult to prove.
4. Industry argued that damages for such activity would cause severe disruption.

In summary, as long as the driller complies with applicable Texas Railroad Commission regulations, a hydraulic fracturing of a legally located well that penetrates an adjoining tract is not actionable by an adjoining owner because the driller, based on the rule of capture, has caused no actionable damage. The adjoining owner can protect its minerals by drilling its own well. The dissent emphasized that small or unsophisticated landowners could be at a disadvantage negotiating with large oil companies or be unaware that drainage was occurring. In contrast, in Stone v. Chesapeake Appalachia, the Court denied summary judgment on trespass by a hydraulic fracturing claim. The Garza opinion was discussed and the court strongly disagreed with its reasoning: “The Garza opinion gives oil and gas operators a blank check to steal from the small landowner.” Relied upon precedent from the Eighth Circuit, which held that the rule of capture did not extend to the use of injection wells to recover brine because the brine was “non‐fugacious.”

14.6 Fracking Bans and Moratoriums

This growing concern on the part of many local communities, whether real or not, over the potential health and environmental risks posed by hydraulic fracturing operations and associated activities has been manifested in various bans and moratoriums. The United States has seen numerous municipalities or counties introduce bans or more time‐limited moratoriums on the practice. Some states such as New York and Vermont have also banned fracking. The precise form these legal actions take varies greatly. In some states, communities have opposed oil and gas development by opting for restrictive zoning and land use measures. Others have employed regulatory controls, while others have implemented bans through community rights charters.

There are three key potential types of legal challenge to municipal and county level moratoriums and bans: preemptive claims, taking claims, and electoral challenges. The first – and the only type to have produced a significant number of judgments so far – are preemption claims. At the local government level, many have adopted ordinances to prohibit or regulate oil and gas development generally or hydraulic fracturing specifically. These types of prohibitions and restrictions can prevent oil and gas companies from completing wells that the state’s oil and gas entity has permitted or impose requirements and restrictions that conflict with those imposed by the state. The issues raised under state law is that of preemption or supersession, that is, whether the state oil and gas program can prevent local governments from precluding or regulating such activity. Although much of this local government activity has occurred in the Northeast Marcellus Shale region, such circumstances have also occurred in Colorado, Nevada, North Carolina, and Texas. Courts in West Virginia, New York, and Pennsylvania have recently decided oil and gas preemption cases, and two such cases are currently pending in Colorado. These cases involve different state laws and local ordinances, but they raise similar issues and involve similar legal principles.

The legal argument is that such municipal regulation is unlawful because such regulation is preempted by state law. Such claims typically seek declaratory and/or injunctive relief to have the restrictions lifted. While most preemption challenges have been examples of what some referred to as “proactive” litigation, brought by a plaintiff with economic interests, there are also examples of “reactive” litigation. In this scenario a company goes ahead with drilling and waits to be sued as a defendant for breaching local ordinances. Another form of reactive litigation surrounding bans and moratoriums has involved lease contract renewals or extensions. In New York, a number of oil and gas companies, fearing that the state’s moratorium would lead to termination through inactivity in this way, argued that the moratorium amounted to “force majeure” – an unpredictable situation beyond the company’s control, which prevented it from drilling; thus, the delay imposed by the moratorium should not count for the purposes of the lease. In an effort to enforce their termination rights under the contracts, a number of landowners litigated. Also, these challenges were typically defended by oil and gas companies trying to ensure that they did not lose the remaining economic value of the leases they had purchased.

Taking claims argue that moratoriums or bans are unconstitutional regulatory takings that violate the owners’ property rights under, in particular, the Fifth Amendment (or state equivalents). The remedy sought here is damages to reflect the loss caused by the restriction. Restrictions on fracking may now face both types of claim simultaneously, it being considered that adding in a damages element produces a more powerful challenge. In Western States Petroleum Association v. City of Compton, et al. (Case No.BC552272, filed 21 July 2014), both arguments were raised in its suit against Compton. Observers have noted that a taking claim brings the added dimension of a potentially significant verdict against the counties. Although Compton was not the first city in the state to enact such a ban, Compton was the first city to be sued over it. In lieu of the risk of incurring a large financial obligation, some have argued that localities may rescind their fracking bans. Foregoing discussion of the substantive law on takings, the issue with such claims is likely to be the difficulty in establishing the economic value of the property – that being it has been removed. Should the courts view a minerals estate in isolation, then a ban on fracking will typically not prohibit conventional well drilling.

The third are electoral law challenges surrounding municipal ballots introducing bans or moratoriums. For example, Thomas E. Cave and Broomfield Balanced Energy Coalition v. The City and County of Broomfield challenged the electoral process introducing the Broomfield fracking ban. In the event, the court ruled that the city had substantially complied with state election laws and that the election should not be set aside.

Of about 23 cases involving litigation against bans and moratoriums, a mix of oil and gas companies, state oil and gas trade associations, property owners, state agencies and private citizens, and citizen groups is evident (Table 14.2). Despite the small number of cases, a greater number of legal claims have been taken by economic interest (i.e. oil and gas companies), with landowners a close second. Most of the suits from the oil and gas industry were mainly from relatively smaller companies, most being local (i.e. state or regional) (Table 14.3). Of the four relatively large companies, one was a subsidiary of a much larger company (Shell), one was integrated, one was independent, and one was a midstream pipeline infrastructure company. Lastly, five suits have been brought by publicly listed companies owned by holders; whereas, nearly twice that number have been instigated by privately owned companies.

As a result of bans and moratoriums, companies whether large or small may both be staring at losses running into millions of dollars. Nevertheless, relatively larger companies are better positioned to weather litigation for whom those many millions will be more marginal in terms of their overall operations. Furthermore, such companies must also balance these benefits against public relations and reputational costs that may arise from becoming involved in divisive litigation claims.

14.7 Summary

Most of the litigation involving directly or indirectly hydraulic fracturing involves traditional tort claims by landowners for negligence, trespass, nuisance, and strict liability based on allegations that hydraulic fracturing operations contaminated groundwater. A few involve NEPA‐type claims by conservation groups alleging that government agencies failed to consider the potential environmental effects associated with hydraulic fracturing, while others involve preemption claims seeking to invalidate local government prohibitions and restrictions on such activity.

Many of the cases presented herein remain in the early stages of litigation, and the legal theories and arguments continue to evolve. Tort plaintiffs have enjoyed little success to date, and the filing of new cases has decreased dramatically. Causation appears to pose a major obstacle for plaintiffs, and courts have dismissed several cases where plaintiffs failed to meet their limited factual burdens under a Lone Pine order or summary judgment motion.

Many states have also adopted upgraded and new well integrity and waste management requirements to minimize the risk of groundwater contamination, and investigations by various agencies at the federal, state, and local level have cast doubt on several contamination complaints, or there exists a significant degree of uncertainty for a variety of reasons. Regardless, we could see an increase in the number of tort cases if scientific studies provide reliable evidence linking hydraulic fracturing to groundwater contamination or health impacts. Future lawsuits could also be directed not only on groundwater, but toward other types of alleged injuries not directly related to water supplies, such air quality or seismic impacts, or to focus on wastewater injection rather than hydraulic fracturing.

NEPA‐type litigation may also increase if groups and individuals seek to stop hydraulic fracturing or oil and gas development by challenging government decisions that authorize or facilitate such activity. Because such litigation does not require proof of exposure, causation, or physical injury, it does not face the same obstacles as tort litigation. However, it does require either action by the federal government or action by a state or local government that is subject to a state environmental policy act. Although a relatively small number of states have adopted such acts, this may generally limit such litigation to federal mineral leasing, well approval, and pipeline authorization decisions.

Should the efforts to ban hydraulic fracturing and institute a moratorium increase, preemption litigation may increase as well and is expected to increase in some areas in the immediate future. The results of this litigation will generally depend upon (i) how courts interpret the local ordinances and state laws at issue, including, in particular, the importance of oil and gas development and uniform regulation to the state’s statutory objectives and (ii) whether the local provisions are characterized as operational or land use requirements.

All things considered, media’s interest and public concern will likely continue, leading to further state and federal regulatory initiatives and additional scientific studies. This will have a bearing on how future litigation will be shaped and interpreted. Industry is thus served best by continuing the industry its current efforts of public outreach and education, implementing best practices, promoting transparency, and transitioning toward greener operations at all levels.

14.8 Exercises

1. 14.1 What is tort law, and when did the legal community start to address environmental harm and issues?
2. 14.2 What are some of the major elements behind litigation associated with hydraulic fracturing operations?
3. 14.3 Who files most of the litigation and under what circumstances?
4. 14.4 Generally speaking, what are the four categories many of the litigations fall into?
5. 14.5 What are some of the most common and least common causes of action?
6. 14.6 What makes up the majority of litigation involving hydraulic fracturing, and where?
7. 14.7 Why is the issue of exposure and causation difficult to assess?
8. 14.8 What are Lone Pine orders and why are they important? Provide an example.
9. 14.9 Induced seismicity alleged to be caused by hydraulic fracturing operations and/or waste disposal activities come under what type of case law? Provide an example.
10. 14.10 Compliance enforcement issues include what types of areas for challenges? Provide an example.