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?
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.
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