Water Quality: Aren't They All Waters Of The United States?

Clean Water,  Messy Language

Welcome back everyone, after a short July break I am ready to get back to it and continue the discussion. As promised, we are starting on a series that will give us a platform from which we can discuss topics of water quality, environmental protection, and governmental intervention in business. 

A great starting point for a discussion about modern water quality, begins in the 1970's. It was the age of Nixon, Viet Nam, and the beginning of the Environmental Protection Agency. The modern day environmental movement was already alive and thriving, thanks in large part to our own native Pittsburgher Rachel Carson. Carson had published her book Silent Spring in 1962, amid a fierce outcry from pesticide manufacturers who were directly in the crosshairs of the book. The effect of the book's central demand for ecological awareness and protection still rings out today on a variety of environmental campaigns. The tone of change across the country, and the political need to update the existing structure of environmental protection laws lead to the creation of a suite of statutes. These laws address distinct problems including air pollution, water quality, toxic chemicals restrictions, and clean-up of contaminated lands across the country. 

Of course I'd be overjoyed to talk about all of them, but sadly today I'll have to narrow it down to just the Clean Water Act.  

Clean Water Act

To set the stage for future conversations, lets begin with a quick and dirty outline of the most essential bits of this large body of law. In just 3 simple sentences, the Clean Water Act makes a whole lot of activity illegal, and then turns around and tells us how we can get around being considered a criminal. Section 301 of the act breaks down to prohibit the (1) discharge of a (2) pollutant (3) from a point source (4) into a navigable water as unlawful activity, unless done within certain limitations. Sections 402(k) and 404(p) then compliments section 301(a) by establishing that these activities can be made legal under authority of a permit issued by an appropriate governmental agency. In these 3 simple sentences we have the statutory basis for the Environmental Protection Agency's (EPA) entire water quality scheme, as well as every state and regional program to regulate water quality.  

Of course it seems far too good to be true that we can boil down water quality protection into 3 simple sentences. If there's one thing that lawyers love to take advantage of it's the inherent ambiguity in simple sentences of law. Each of the 4 points, or elements as attorneys would refer to them, I've numbered from Section 301 has its own legal ambiguity that has been exploded out into years of court battles. Following each court ruling, revisions by the EPA are released to illustrate how the agency interprets the language in making decisions. Lets take a quick look at one recent interpretation of just a single element from Section 301(a). 

Waters of the United States

On June 29, 2015 the EPA published in the Federal Register a rule more commonly known as The Clean Water Rule: Definition of "Waters of the United States." This rule establishes the EPA's position on the definition of the phrase "Waters of the United States" for the dual purposes of making the Clean Water Act (CWA) more effective, and to help interested parties more easily understand the CWA's effect on their activity. Why is it necessary to explicitly define such a phrase that seems fairly simple, you ask. Leave it to the ambiguity of language to start some interesting legal battles. 

To understand the confusion, we have to step back two steps to get to this point. The predecessor to the CWA, known as The Rivers and Harbors Act, was the first environmental protection statute passed by Congress. The statute outlawed obstruction or pollution of navigable waters or tributaries. Of course, legal battles established a means to define "navigable waters," and we ended up with the "Daniel Ball" test.  Essentially the test states that a water is "navigable" if it can be used for normal commercial shipping purposes, if it is actually navigable, or if it is connected to commercial activity in some way. This created some obvious holes in waters that were not covered by the pollution protections. Along comes the environmental movement and the CWA.

The CWA was meant to compliment other statutes like the Rivers and Harbors act in what it protects and how it defines terms like this. In it's definitions section, the CWA defines "navigable waters" as "waters of the United States, including the territorial seas." Quite the helpful drafting by Congress on that one; that really makes everything totally clear. For the average person the response to "What is a Water of the United States" might seem fairly simple: any water body in the United States. Of course, the simple answer isn't always the correct one. In the decades that followed, a whole series of cases were decided on the question of defining those simple words. Most recently, the whole question was thrown for a loop with the U.S. Supreme Court decision in U.S. v. Rapanos. This case asked the question of whether wetlands not connected to surface waters or commercial activity can be considered "Waters of the United States." The Court's decision was not conclusive and left environmental organizations, corporations, and the attorneys they hire with several ways to define the word depending on which judge you listened to. The Clean Water Rule is designed to simplify the whole mess of definitions and tests, without changing any of the exclusions from the rule that already exist (such as agricultural runoff). I'll spare you the details it takes to explain the full rule, but if you're interested in understanding how terms like this are interpreted, check out the EPA's website on the rule.

For the average person, none of this has much effect on your life or how you spend your time by the river. For those organizations who focus on environmental protection and the businesses they monitor, it is an essential component of their work and risk management. For all involved, regardless of their interest, the Clean Water Rule adds a higher degree of dependability to the decision-making process.

Social Justice Moments: Same-Sex Marriage

I know at the end of my last post I said we would be jumping into an ongoing series on water law and water quality, but I’m going to put that on hold until next time, and discuss something a little more timely. This will be the first post in a series I’ll call “Social Justice Moments,” where I’ll take a brief break from environmental law and discuss an important and timely social justice legal story. This is also also as an opportunity to discuss the work that the talented attorneys in my law firm do every day, and how we are reacting to this decision. I’m aware that this doesn’t quite fit the theme of environmental law either, but this is also a forum to discuss social justice and commerce more generally. Therefore, if you’re coming purely for the environmental law discussions, you should check back next time.

Obergefell v. Hodges

On Friday June 26, 2015, the United States Supreme Court released its decision in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. In the controversial ruling, the Court found that the right to marry in the United States is a fundamental right protected for all people by the Constitution. Let’s unpack very quickly what the Court is actually saying here and why this is an important principle for commerce law in the U.S.

Everyone learns in high school social studies classes that the Constitution consists of two distinct parts. The first is the general body of the Constitution, which consists of seven “Articles”. Among the functions of the Articles is to outline the basic format and function of the 3 branches of government, and how they should interact with and restrain each other. The other portion of the Constitution is what we know as the Bill of Rights, being the first 10 amendments to the Constitution, and then all of the amendments made subsequent to 1787. The rights that are discussed in the Bill of Rights and its amendments are not rights given by the Constitution, but are rights that the government acknowledges that it cannot take away from the people.

This is an important legal principle because it puts the responsibility on the people to argue what the bounds of those protected “fundamental” rights are. A whole area of Supreme Court precedent deals with interpretation of the 14th Amendment. The 14th Amendment is seen as legally protecting these fundamental due process rights for all U.S. citizens. Among the fundamental rights that have been successfully recognized through the language of the Constitution are the right to travel between states, the right to use contraception, and the right to marry persons of other races. If it’s becoming clear how the Court found in Obergefell that such a fundamental right also exists for same-sex couples, then a gold star for you; you’re practically a Constitutional law scholar.

Perhaps one of the most famous recognitions of marriage as a fundamental right by the U.S. Supreme Court came in the case of Loving v. Virginia. In Loving, the Court was asked to rule on the Constitutionality of a Virginia ban on interracial marriages. The mere fact that a white man married a black woman placed the two in danger of a one-year jail sentence, which was reduced to a Court-Ordered exile from Virginia for 25 years. The Court reiterated earlier case law that found marriage to be one of the “basic civil rights of man,” and found that the “freedom to marry, or not marry, a person of another race resides within the individual.” The modern Supreme Court used these same principles as applied to interracial marriage bans, and found that same-sex couples are no less protected in their fundamental right to marry and have their unions recognized under the law. Of course there are those who criticize the decision on and off the Supreme Court, but that is the nature of our democratic system. At each phase of our national development there has been a series of cases which, when the decisions are released, polarize and divide the country. Each time the parties sympathetic to the dissent complain and protest. But, each time the smoke clears and the nation continues moving forward stronger and more united than before. I don’t foresee this time being any different. If anything, I think that this decision will be more of a minor hiccup, in it’s negative backlash, compared to some of the other major decisions of the past 100 years.

Beyond my mere support for the decision, I would like to point out how this type of decision will come to affect the populations of people who can now validly marry, or simply have their valid marriages recognized at home. When a couple marries there are many implications for their finances, property, and respective futures. Married couples in this country are given many benefits simply for this status, including the ability to cover spouses on health insurance, recognition of inheritance, and in some states, the automatic co-ownership of property. In Pennsylvania for instance, all property acquired during the course of a marriage is automatically transferred into the ownership of both spouses, unless they both show an intention to keep the property separate. This implication is important if the couple chooses to divorce or if one of them dies without a valid will in place. This is just one example where legal planning for your future would be an important consideration for all couples, regardless of gender or sexual orientation.

At the Commerce Law Group, LLC, we are proud of the decision of SCOTUS, and continue to support clients past, current, and future, regardless of sexual orientation. I for one am excited to work with same-sex couples through any of the legal issues discussed above and to work to ensure that the rights of all people are protected and recognized under the laws of this great country.

Basic Land Title Documents

Basics of Title

Welcome back and a happy Monday to all of you reading this in a timely fashion, as you should be. Last time I discussed the two major players in land title research, the landman and the title attorney. We are going to jump in today and talk about some of the general types of legal documents that you might see in a landman’s abstract of a parcel and some things to think about when looking at transfer of ownership for any sort of real property.

The basic types of documents you'll find in an abstract can first be broken down into the two categories: conveyances; and encumbrances. Conveyances include all of the basic instruments used to buy or sell land. The most basic type of document that you'll see is a Deed. A deed can come in many forms depending on the time period and specific jurisdictions in which the land being sold is located. This means sometimes, in the title of these documents, you'll see the added words "warranty" or "general warranty." The warranties that are being referred to are just fancy ways for the seller to guarantee that: they did in fact own the land they're selling, they're selling it as advertised without any surprises, and that they've disclosed any encumbrances (which we'll discuss in a moment). These are terms that were more prevalent in older deeds in times when it wasn't quite as established that these warranties are basic concepts that are implicit in any deed for land or property today. 

A couple of subsets also exist under these basic conveyance instruments, for things like quitclaim deeds and sheriff's deeds. A quitclaim deed is slightly different from a simple deed in that what is being conveyed is either an actual or potential interest in what the person conveying the interest, otherwise known as the grantor, actually holds. Basically, these are deeds which bar the grantor from ever coming back and claiming they hold some small interest in the property, and are owed some type of compensation for that interest. The other variation, known as a sheriff's deed, is a document executed by a sheriff to a buyer who acquired their interest in the land at a public auction, or sheriff's sale. These deeds typically follow the repossession of land to satisfy debts, unpaid taxes, or when there is no known party to whom the land interest can be conveyed when the previous owner died. 

That last point brings me to the next form of conveyances, which are those that occur following the death of the current owner. Typically, upon the death of a current owner the first place to look when determining how land will be conveyed is in the Last Will and Testament of the deceased. Wills are submitted into probate courts that verify the validity of the documents and oversee the administration of the estate through the Will's instructions. In an abstract in Pennsylvania, you'll not see any other documents of conveyance if there is a duly probated Will. The land will simply pass as per the instructions in the Will. However, in places like Ohio, you will see a little bit more. In Ohio, following probate of the Will the Court issues and records in the County Recorder's office a Certificate of Transfer. The certificate of transfer is just a reflection of what's actually in the Will, but makes it much easier for reviewers to see who was alive at the time of the Will being probated. Sometimes, in West Virginia especially, you'll see no conveyances and no Wills to indicate how the land was conveyed. These are instances where landmen have to dig deeper into documentation; to determine who was alive at the time and how many pieces the whole interest was broken into. 

The other major type of documents you will find in an abstract are referred to as encumbrances. Encumbrances are instruments which follow the conveyance of land, and may need to be satisfied and removed from the title in order to sell or lease the land. Typically, the types of encumbrances which need to be satisfied are instruments such as: mortgages, liens, tax burdens, and unreleased leases. For oil and gas purposes, the timing of when these documents were recorded is also quite important; and a topic for another discussion. In essence, when a party tries to sell land with a lien or mortgage on it, the buyer would have to either take on that mortgage themselves, pay the entire balance prior to the sale, or find some way to negotiate for the mortgage to remain in the interest of the seller. For oil and gas operators, the existence of debts and mortgages on land, when considering executing a lease, spells out potential complications later if someone comes to collect on debts that have gone unpaid for a period of time. An even bigger issue might arise if there is a lease on the land for oil and gas drilling which appears to be void because of low production. This situation might turn into a prolonged, costly court battle which could result in the loss of wells drilled on already leased land. 

For our purposes, the other major types of encumbrances are what could be considered more passive. Rights-of-way and easements are instruments which typically allow for the construction of infrastructure, for example: pipelines, telephone and electric systems, and highways. Easements, however, can take the form of whatever the parties wish to agree upon as being a required activity on the land. This might include something as simple as a walking path over someone's land for their children to cross after school, or something as major as a permanent roadway access across private land. For oil and gas activities, these are important when considering planning surface activities, placements of pipelines, and deciding whether to build new structures or simply acquire and utilize what's already in place. 

Of course these are not by any means all of the documents you might and will come across in an abstract. But these give you the basics about what each type of document can, and is doing when you look through that stack of papers. If you have any interest in learning more about this topic, continue following along, or consider picking up any number of publications from organizations like the AAPL. Next in this series we will be looking at the different types of interests that may be conveyed ,or created, in the conveyances of land title. In the mean time, look out for my next post, which will address a broader series of topics on water law and water quality topics. 

            

Introduction To Land Title In Oil and Gas

Happy beginning of summer to everyone. I know it's not the official beginning of summer yet but when children start getting ready to leave for their break I just start to feel like it's summer already.Today I'm going to begin a series on some very fundamental areas of oil and gas law that are taking place here in Pennsylvania. We're going to start with the property law related to oil and gas drilling, and acquisition, and then I'll use that as a platform to begin talking about some contract and transaction issues that might be relevant to landowners and companies alike.

Land Title: Basic Actors

So, as I said, today is just going to be part of laying a foundation so we'll start with some very basic concepts. I'm sure all of you know that in order for someone to drill for oil underneath land they have to either own that land, own the minerals, or have an agreement to drill under the land, otherwise known as a lease. A lease can be either done individually or can be done as part of what's called a pool or unit. Pools and units allow oil companies to make sure that no matter where they're pulling oil and gas from, or which direction they're putting a horizontal lateral in the case of Fracturing, they are able to legally collect as much oil and gas as possible. it also helps to ensure that they're paying the correct people their fair share for what is pulled out of the ground.

It is at this point you might be thinking "well if you have these large tracts of land owned by many people each with their own leases that sounds really complicated." Bonus points for you for looking ahead. Ownership and correct royalty payments is hugely important for oil and gas companies. That's why they hire typically independent contractors known as landmen to do a lot of the legwork, or due diligence, to ensure all the ducks are in a row. 

A landman is typically an independent contractor who is assigned a specific parcel or series of parcels of land by a company to research. The land man will use any resources at their disposal including online and in the courthouse resources to trace back title for a given area of land to ensure one of two things. There either trying to ensure that a mineral deed that is being executed is being signed by the correct mineral owner, or they're trying to ensure that royalties being paid under an executed lease are being paid to the correct owner in the correct proportion.

Who are landmen and title attorneys, and why do we need them?

The land title industry is wide and quite varied. Entities like banks, insurance companies, real estate agencies, and oil companies all need specialize employees who can decipher the often vast and confusing title documentation, and make sense of them. Being a landman doesn't typically require any kind of advanced degree beyond a high school diploma, though some advanced skills would certainly help because it can be quite complicated.

The role of the landman is to ensure that clear and accurate understandings of land ownership are known by parties to a land transaction. A mistake in ownership can cause massive headaches in the long run because companies may have to pay out twice on the same royalty values if they never paid the correct owner.

A landman's work product is what's known as an abstract. An abstract is, hopefully, a full and complete record of ownership, transfers, liens, taxes, out sales, and other other actions that may have affected a given piece of land over the last 160 years or so. One big thing to note is that an abstract IS NOT a legal opinion. Abstractors don't need to be attorneys, though attorneys can be abstractors. In either case, unless the abstract also contains a certified title opinion, it is not a legal opinion. This is significant because without a lawyer's signature the abstract is simply a set of records with a lay opinion as to ownership. That's not to say that landmen don't have professional standards for their work-product. The American Association of Professional Landmen (AAPL) is a trade group for landmen that provides a set of practice standards and ethics that its members are requested to adhere too. 

A title attorney, on the other hand, is a licensed legal professional who has expertise and knowledge of real estate law in a given geographic area. Title attorneys typically take abstracts done by independent landmen or brokerage firms, and derive their own opinion as to the correct ownership reflected in them. Title attorneys carry large malpractice insurance policies because they are putting their signature on the certified title opinion and may be sought if an error is eventually found in their evaluation of ownership. 

If you're a landowner, you'd most likely be interacting with a landman and not a title attorney. Title attorneys charge much higher fees and have much more value to large-scale companies who have a high volume of title research to be done. While the higher confidence of hiring a title attorney may seem like a positive trade-off for the money spent, a landowner with only a few parcels might do well to look for a landman who is also a licensed attorney. That way you can be confident not only in their skills as a landman and knowledge as an attorney, but you can also work on keeping the costs down by separating out legal opinions from legal research.

So that's a basic introduction to the land title terminology and what to look for if you're engaging in any kind of research with a land professional. Next time I'm going to cover a few of the basic types of agreements that a person might find in a title abstract and discuss the differences. That will lead us into looking at the different types of mineral agreements that you're likely to see and how they all make sense.

Induced Seismicity Part III: Standing on Stable Footing

Induced Seismicity Part III: Standing on Stable Footing

When I hear the word negligence the voice of my first year law school torts Professor comes in my head.  His simple phrase repeated again and again anytime he said the word negligence regardless of whose name he called out at any one moment you were to respond with the four elements "duty, breach, cause, harm." And of course this is obviously an oversimplification of what negligence means but it's a good way for anyone to think about whether they have what might be considered a negligence case under the law.

Negligence

Let's look at each of these elements in a very basic way. What is it mean to have a duty? Essentially it means that you have a relationship with another person regardless of whether you know them or see them or have any connection to them in your mind, but you owe them some kind of responsibility. For instance, if you drive a car you owe duty to all the other drivers on the road not to wildly swerve over and smash into them. Now that's a pretty simple concept. You can look at most people and if they've hurt someone else you can find the duty that was owed to the other party not to harm them in that way. Now that brings us to the second element which is a breach of that duty. By breaching of duty it simply means you failed at that duty. Go back to my earlier example, if you are the driver who swings wildly between lanes and smashes every car you've broken the responsibility that you have to those other drivers to stay in your lane.

Now I'm going to skip to harm because that is simpler then cause. Harm is fairly obvious I think because we all know what it means to be harmed. Now in the context of a tort, harm can be a physical damage like being hit but it can also be an economic damage like loss of business or destruction of your reputation in the case of things like defamation. Causation or cause is a little more difficult for the average person to wrap their mind around. Cause can be looked at in several ways. We can look at it from what's called the but-for perspective, which means that were it not for you swinging the car to left the other driver would not of been hurt. Without your actions they would still be fine. The other perspective that we tend to look at is what's known as proximate causation. When think of proximate causation we think of whether your actions could be viewed in such a way as to say that it was conceivable when you did whatever the thing was that you would hurt another person. For example, you accidentally dumped nuclear waste into a river. Of course you're going to face some pretty hefty environmental regulatory sanctions and fines but you're also probably going to hurt some property and person. But at some point all the way down the line you're going to have to cut off where the law says that you're allowed to sue the person that dumped that waste. So if this happens to be a salmon breeding ground for instance and you live all the way across the country and you eat some of the salmon that was poisoned. You didn't know that when they caught the fish that you would catch some kind of minor radiation poisoning. If you find out where your salmon came from and realize it was poisoned by this toxic waste and you go to sue the person that dumped this wasting to the river, it's going to be difficult for you to win. In that case it was not reasonable for them to think at the time that they dumped that toxic waste into the river that they were going to harm you in this way. The law makes the cut off at some point so that each person can act in a way where they can expect who they have a duty to and avoid breaching it. Now let's apply this analysis to be induced seismicity.

The analysis will apply the same way going through the duty, the breach, the cause, and the harm. Beginning with the harm, because that's most clear, we can say that in any of these cases the harm will be whatever damage is done as a result of seismic activity in the form of these minor earthquakes. Then working backwards again one more step we can say that if there is a clear link as created through all the scientific evidence between the injection of the water in the ground and the earthquakes, then we have causation. But-for the injection of the water the heightened occurrence of earthquakes would not have led to destruction of property. Further, when we think of proximate cause in this case the arguments can be made on either side. If the science is so clear that one causes the other then to say that from now on anytime somebody injects water into the ground the assumption that there's going to be earthquakes in the nearby area which may cause damage doesn't seem so unreasonable. However the counter argument to that could be something like, it's hard to show directly that any one person injecting water into the ground actually created the disturbance that led to a particular earthquake. Of course then we can go back to the first two elements and argue that parties disposing of wastewater from oil and gas have a duty not to cause earthquakes the damage homes and by doing so they are breaching that duty.

In my opinion I think the hardest part about bringing any of these cases in the future under theory of negligence is going to be showing the element of causation. Despite having a fairly strong scientific correlation through the statistics related to increased activity both in injection and in seismic activity in these areas, it's a touch sticking point. It's hard at law to point directly from one person injecting water into the ground to one distinct earthquake. Only time will tell if these sorts of cases managed to proceed and succeed on the part of plaintiffs but I think for now the near future, based upon all of the circumstances, favor still lies with the companies that are injecting this water into the ground.

That does it for our look at the theories for litigation based upon induced seismicity.  Next time I will be starting a series on the basics of oil and gas leasing. From there we're going to look at different types of business entities and how the relationships between parties to a lease can affect how it's viewed under the law and some conflicts that might arise.

Induced Seismicity Part II: Searching for Stable Grounds

Induced Seismicity Part II: Searching for Stable Grounds

 I spoke last week about the recent discussion and litigation related to a phenomenon known as “induced seismicity.” Essentially if you miss the last post I’ll give you a quick recap. Geologists with the USGS as well as several civil plaintiffs have noticed a correlation between underground injection of oil and gas wastewater and a drastic rise of seismic activity to levels well above normal for these areas. What civil plaintiffs have argued in pending cases is that damage done to their homes due to these human-induced tremors constitutes a nuisance (See last post for more details on this theory. Today I’m going to discuss another legal theory that may apply to these activities in these and future cases.

Ultra-Hazardous Activity

One thing that anyone working in the law comes to understand is that certain simple terms can be loaded with all kinds of other implications. We all surely understand what comes to mind when we hear that something is a hazardous activity. By the same token though, what comes to mind when one hears that something is “ultra hazardous?” The first time I heard it I was instantly filled with thoughts of scenarios where the phrase “jumping the shark” might come into play. But, the term is much simpler when we think about how the law treats the risk we put others in with our actions.

An ultrahazardous activity is an action that is so dangerous to others that the person engaging in that activity can and should be held liable for injuries to others, despite their having taken every reasonable precaution possible. I know that was a mouthful, but it’s not as complicated as it sounds at first glance. It’s simpler first to think of these types of activities by another name, “abnormally dangerous.” Typically abnormally dangerous activities that a person can engage in are ones which have a naturally dangerous condition. For instance the handling of high explosives is certainly abnormally dangerous for the vast majority of us, unless you’re living alone on a remote island or in some locations used for the filiming of Break Bad.  The law treats a person who engages in these kinds of activities differently than others who inadvertently cause harm to others. When a person injures another while conducting an ultrahazardous activity, they are responsible for all of the harm. This is different from other types of tort cases where a defendant might lower their eventual payout by showing that they attempted to prevent harm or that the victim was actually at fault for their own injuries.

Where these types of cases become difficult are in first proving that the activity, if it’s not as plain and clear as blasting holes with dynamite is actually ultrahazardous. A plaintiff must show that the activity involves a real risk of serious harm to people or property, that the activity cannot be performed without the risk of serious harm regardless of the level of precautions taken, and that people in the community do not commonly engage in the activity. Of course a connection between the activity and the harm must be shown, as well as actual injury to the plaintiff.

It can also become quite difficult to establish how the activity differs from the local  community standards. The attitude of any given community or location can change how a local court will view an activity as being ultrahazardous or not. Just consider what would make you more uncomfortable: a train full of highly toxic waste traveling on its way to Yucca Mountain through the desert, and then consider that same train driving along the tracks right through the middle of town and close enough for your kids to wave to the conductor at recess. It’s obviously a subjective standard, but it makes all the difference what the climate of the local community is and where the activity is actually taking place. Use the same example where that train traveling past children is in a community where the primary business is a nuclear power plant and atomic bomb factory. It is, as they say, all about “Location, location, location.”

It has yet to be seen what the outcome of the pending lawsuits will be in states where seismic activity is occurring, but we can certainly speculate as to what might be key issues in meeting the burdens required for any of these cases. The first barrier will be finding a way to classify the underground injection of oil and gas wastewater as ultrahazardous. Of course if the link between the injection of water and seismic activity is strengthened it becomes harder to say that it’s not inherently dangerous, especially in areas where earthquakes occur regularly as a result. However, it might be just as easy to argue that an activity, which might cause damage once after thousands of seismic events, doesn’t amount to an ultrahazardous activity.  Further, it might prove quite difficult to find communities where oil and gas activity is an essential aspect of the local economy that would also be opposed to underground injection of the wastewater that it creates.  Therein lies the rub in my opinion. How to label an accepted activity as ultrahazardous when it’s such an essential part of the places it actually causes damage?

 Next time we will look at a simple tort theory which might prove valuable if the link between these activities and earthquakes becomes more solid.

On Shaky Ground: Induced Seismicity

On Shaky Ground

Here in Pennsylvania we certainly get our fair share of sensational news stories about oil and gas drilling concerning what new and fantastic damage is being done. In my own opinion though most of these stories are more like the puppy dog stories on Cnn news; they’re more meant to fill time between the real news than to be viewed as real news. That’s not to say that we don’t have some tried and true environmental problems related to all of the extractive industries. One area that I’ve dealt with and view as one of the most important aspects of the dialogue surrounding the oil and gas development we’ve seen as of late is the issue of waste and wastewater.

Induced Seismicity

There has recently been a story that’s cropped up in many mainstream news sources that deserves some discussion. In it’s late-April early-May edition, Bloomberg Businessweek reported a story on the owner and entrepreneur behind New Dominion LLC, David Chernicky. New Dominion is in the business of extracting oil and gas from fields previously thought depleted, as well as in the large scale underground injection of oil and gas wastewater. The main innovation Chernicky instituted for extraction is to “dewater” previously drilled fields which brings up the oil or gas trapped in the water. The process results in millions of gallons of wastewater, which New Dominion then pumps back into the ground into underground injection wells.

The key to this story is not in the successes of a company that’s managed to see a problem and overcome it through some serious technological innovation, but in the negative externalities that some have alleged are being caused by these new techniques. Some seismologists and geologists in describing human activities that cause seismic activities use the term “induced seismicity.” The USGS reported induced seismicity in early 2014, about the dramatic increase in the number of earthquakes occurring in the central and eastern United States. Even at that point the USGS concluded that the increase in seismic activity in these regions coincided and closely correlated with the dramatic increase in wastewater injection activity. While the same study also found that there is no indication that “fracking” activity itself has ever been to blame for induced seismicity strong enough to cause structural damage.

Today, as this alleged induced seismicity continues to occur and even become more frequent, some are taking action. Earlier this year several lawsuits were filed against companies in Oklahoma, including New Dominion, alleging that their activities led to earthquakes that caused significant property damage and injuries. The class-action suit out of Prague, Oklahoma, contains several common allegations including that the injection activities constitute a nuisance.

What does this really mean, and is this a common theory that could affect other kinds of drilling activity?

Nuisance

In the common law, a nuisance is generally characterized by an activity or condition that unreasonably interferes with the use and enjoyment of the land of another. This form is called a “private” nuisance because the person brining the suit is the individual whose land or enjoyment of that land was harmed by the activity. There is also a form of nuisance known as a “public” nuisance. A public nuisance  occurs when an activity or condition threatens the public health, safety or welfare, or does damage to community resources.

Here in Pennsylvania the Superior Court has follow precedent set in Kembel v. Schlegel, which finds a private nuisance when the activity is either (1) “intentional and unreasonable” or (2) “negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Similarly, for a public nuisance the Courts have found a valid cause when the right infringed is common to the public and if, among other things, the conduct involves a significant interference with the public health, public safety, public peace, or public comfort. It is easy to make the arguments that such effects could constitute a nuisance both publicly and privately. An individual landowner could surely show that an earthquake or series of earthquakes that led to the destruction of their home as a result of injection wells is an unreasonable interference with the use and enjoyment of their land. Similarly, a group of people could argue that the constant threat and presence of earthquakes presumably generated by injection activities is a threat to health, safety, and peace at large. The hard part now, coming from someone who has had to construct arguments in the past rebutting claims like this in a clinical setting, is connecting the science and the rhetoric in the courtroom. That is a hurdle that is more difficult to cross than the divide of public opinion.

It’s not clear whether the Courts in other states will rule on the issue of whether such activity leading to seismic activity will constitute a nuisance. However, here in Pennsylvania with the industry and regulatory structure the way it is, we don’t have much to worry about quite yet about cases based on induced seismicity. Due to our own topography, the technology has not caught up in order to make underground injection a viable option under our feet. In Ohio, such cases like the one in Oklahoma may present some persuasive evidence in future cases related to their underground injection wells.

Next time I’ll cover another theory that may potentially pose a threat to underground injections in the courts, arguing that it’s an “ultra-hazardous” activity, or that the destruction of property constitutes common law conversion.