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.

The Ebb and Flow of Shale Gas

Is the Boom Over?

Recently I was at a hearing in a rural town in southwestern Pennsylvania before a magistrate for a business dispute. After the hearing, the judge and I got to talking and it came up that I worked as a landman and for a Pittsburgh law firm in mineral title in the past year. His train of thought was clearly broken up by a burning question and he asked, "So, do you think it's over? Or is it ever coming back?" By "it" the judge was referring to the shale gas boom that has changed the face of the area around Pittsburgh and the surrounding states over the past 10 years. 

This is a question that, like many other aspects of the oil and gas industry, most of us northeasterners are not quite used to. I can't say how many confused looks I've gotten at the term landman in conversations with people in this area, but in any room with at least one Texas accent I've got at least one guaranteed easy conversation topic. Similarly, the people in this area just are not accustomed to industries coming, growing, busting, and then returning again. Again, if you spoke to anyone who has worked in the oil and gas industry for more than 20 years they'd be able to tell you about the boom and bust cycle that is expected in a volatile and internationally driven industry. These same people can likely tell you about the past slumps where companies consolidate and jobs are trimmed off companies large and small. However these past slumps and the current slump included, are based on the drop in oil prices and not the natural gas we have all come to know well in this region. The problem now is that the shale boom was so productive and efficient in not only producing gas, but in generating more effective technology to continue the process in the future. Now we have a glut of international oil supply without space to store it all domestically, and a glut of domestic natural gas supply here at home without the means of exporting it to keep the demand high. It's a truly tight spot to be in for those who work in the industry, and not exactly the best time for others to advocate alternative energies either with prices so low. It is however, a great time to regulate and dig in as far as the regulatory structure is concerned, to prepare for the next wave of activity to come crashing in. 

We are now in that portion of the cycle where companies consolidate power, invest in technology, and get ready for when the next price rise calls for their unique stance in the market. The industry boom generated the local money and new drilling technology that will be ready for the next boom in oil when companies have the wiggle room again to invest in gas output. Hopefully the excess money that was generated will allow for technology to continue progress in a clean energy future and not just on perpetuation of the current regime. Regardless of the form of progress, we should all still be looking ahead at an energy future where we can avoid the external costs of expected disaster and overuse all together. I think the initial boom is certainly over, but the industry is here and will be here for our lifetimes. Though it's a financially difficult time to be a part of the business, it's a perfect time to be a part of the effort to improve its performance internally and for the sake of the public good. 

What' This All About? I'll Tell You.

Welcome

With any project such as this I always find myself struggling to get the conversation moving, but once it is then it is quite easy to jump in and out without much self-reflection. In any professional field networking is an absolute key to success. Despite having been a teacher and gone through the public speaking training and experiences of an attorney, I still get that anxiety prior to any networking experience. All the worries in the world arise: What will I say? What if we run out of things to talk about? What if we disagree on something important? All very valid concerns, but each one must be left at the door if you want to step through and make a connection. Similarly, I'm leaving it all at the door so we can have a conversation about environmental issues, sustainability, law, policy. In this post I will just go over the basics of what we're going to discuss as this project progresses.

Mission

This blog is entitled Environment In Prospectus. A prospectus is defined by Merriam-Webster's as "a printed statement that describes something (such as a new business or investment) and that is sent to people who may want to be involved in it or invest in it; something (as a statement or situation) that forecasts the course or nature of something." This embodies the content of the discuss I hope to have with readers. The environment and the resources we all depend upon are aspects of this world that we all need, use, and must invest in to some degree in order for the continued success of humanity and the way of life we all want for ourselves. 

As the title may suggest a little overtly, there is not only an aspect to our view of the environment based in stewardship, but also a component based on our culture's innate drive to quantify everything into an economic value of inputs and outputs. I am nothing if not a pragmatic guy. Sure, I have passions and my own desire to see changes made to policies and laws. That being said, I understand the constraints on our actions. The social contract works both ways. 

What I intend to do here is to act as a filter so that we can discuss issues of importance in the United States and abroad related to the environment, ecology, and sustainable living policy and law. I'll do my best to tell what appears to be the truth and I won't hesitate to separate that very clearly from what my opinions are. Hopefully those who find an interest in what I put down here don't hesitate to jump in and join the dialogue; I have not interest in being a talking head. 

Though I come from a legal background, and that will be one of the main ways I attack these topics, I also come from a lower class background and from an education background. I'm used to boiling down topics into what matters most and stating them in a way that doesn't intentionally confuse, or use language that the average person just runs away from. A conversation only works if everyone is speaking the same language. I'll do my best to ensure that we all have a place at the table. 

Invitation

I'm now inviting all of you who come across my blog through facebook, twitter, through my law practice, or through the good ole wonder that is Google, to join the dialogue with me. Hopefully the writing you'll find here will be engaging or infuriating, depending on your stances. Regardless of where you stand though, let's talk about that which is of the utmost importance in this world of ours: Natural resources and how we use, conserve, abuse, and sustain them. 

Legal Disclaimer

The materials available in this blog and any sites associated with its content are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Garrett E. Eisenhour, The Commerce Law Group, LLC, and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Though I am an attorney, I'm not YOUR attorney. If you have any questions, comments, or interest in my practice or questions related to any potential legal claim feel free to email the author at geisenhour@thecommercelawgroup.com.