Wednesday, May 6, 2015

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.

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