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.