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.