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.