Pennsylvania Courts Decline to Take a Step Toward Safer Hydraulic Fracturing

By: Danielle A.  Quinn

Imagine spending over a million dollars to build your dream home only to have your water contaminated by methane gas from a drilling operation on your neighbor’s property, a mere 1,000 feet away.[i] As a result, you are forced to house a large, unsightly, plastic container on your property to store potable, non-drinking water so your family has a water supply.[ii] This imagined scenario is the exact nightmare that a family in Susquehanna County, Pennsylvania is currently facing.

“For decades, courts have uniformly refused to find that oil and natural gas drilling and related activities are ultra hazardous or abnormally dangerous, and thus have found that such activities are not subject to strict liability under tort law.”[iii] On November 19, 2009, however, Pennsylvania was “invited to take a step which no court in the United States [had] chosen to take, and declare hydraulic fracturing to be an ultra-hazardous activity that gives rise to strict tort liability.”[iv] Unfortunately, after years of litigation, and the majority of plaintiffs settling, Judge Jones of the Middle District of Pennsylvania dismissed the plaintiffs’ claims alleging hydraulic fracturing should be subjected to strict liability for being an ultra hazardous activity.[v]

In granting the defendant’s motion for summary judgment on the strict liability claim, the court adopted, in full, the Report and Recommendation of Judge Carlson. In his report, Carlson emphasized how common fracking in Pennsylvania is now, and the economic and societal benefit of fracking. He noted “that since 2000, 649 wells have been drilled in Susquehanna County, Pennsylvania alone, 99.5% of which have been hydraulically fractured since 2009.” [vi] Furthermore, since “1859, more than 350,000 natural gas wells have been drilled in Pennsylvania.” [vii] In addition to the substantial number of wells that have been drilled, the Marcellus Shale Education and Training Center report on drilling “found that each new well drilled in the Marcellus Shale generated 30 jobs and $4 million in total output within Pennsylvania’s economy.”[viii] Carlson also analyzed the Restatements six factors to determine whether an activity is ultra hazardous or abnormally dangerous. In doing so, he determined that properly executed drilling operations, conducted in appropriate areas, coupled with the economic and community benefit outweighed the risk involved with hydraulic fracturing.[ix]

While properly drilled wells may pose little threat to neighboring properties and well water sources, Yale University conducted a study in 2012, which  surveyed 492 people in southwestern Pennsylvania and showed that 39% of people living within a mile of a well reported having upper respiratory symptoms while only 18% of those who lived further away reported similar problems.[x] Similar results were shown when asked about skin irritation.[xi] While these results appear to indicate that fracking is causing these symptoms, the authors of the study recognize that more research needs to be done to support that conclusion.[xii]

Two years after the Yale study was conducted, scientists from universities around the country studied the gas content of “113 drinking-water wells and one natural methane seep overlying the Marcellus shale in Pennsylvania, and [] 20 wells overlying the Barnett shale in Texas.”[xiii] The study analyzed the “noble gases and their isotopes in groundwater near shale gas wells.”[xiv] The data ultimately “appear[ed] to rule out gas contamination by upward migration” from where horizontal drilling or hydraulic fracturing occurred to the underground aquifer.[xv] Rather, the results showed that the gas contamination came from much shallower depths.[xvi] Thus, the researchers concluded that hydraulic fracturing is not the cause of the contamination; rather, it is caused by “well-integrity problems such as poor casing and cementing.”[xvii] Moving forward, knowing that the structural integrity is the source of the contamination, oil and gas companies may be able to focus on how to prevent groundwater contamination by drilling safer wells.

Although this is the first in-depth study to examine the issue of groundwater contamination from fracking wells, it is certainly not the last; especially with the ever growing controversy and concerns that surround the hydraulic fracturing practice. While this study was not published at the time Judge Carlson issued his report and recommendation, it strongly backs-up his position that hydraulic fracturing should not be considered an ultra hazardous activity; at least regarding groundwater contamination. But, all is not lost for the plaintiff family though because the issue of negligence is still pending before the court and studies, such as the one referenced above, will help make a stronger argument that the gas company was negligent in drilling and maintaining their well.

[i] Gina Passarella, Drilling Contamination Case Narrowed Against Cabot, The Legal Intelligencer, (January 14, 2015) (giving background of plaintiffs situation and how groundwater contamination effected them).

[ii] Id. (explaining consequences of contaminated well water).

[iii] Ely v. Cabot Oil & Gas Corp., 38 F.Supp.3d 518, 520 (M.D. Pa. 2014) (giving history of strict liability applied to fracking).

[iv] Id. at 519. (stating Pennsylvania could set new precedent for fracking liability).

[v] See Id. at 520. (dismissing claim that fracking is ultra hazardous and thus subject to strict liability). In 2009 when the case began, there were 44 plaintiffs and two defendants in the case; today there are only 10 plaintiffs and one defendant. See Gina Passarella, supra note 1.

[vi] Id. at 523 (providing statistics about fracking in Pennsylvania and Susquehanna County).

[vii] Id. at 524 (providing statistics about fracking in Pennsylvania and Susquehanna County).

[viii] Ely, 38.F.Supp.3d 518 at 524. (giving statistics on financial impact of drilling in Pennsylvania).

[ix] See Id. at 529-33. (applying Restatements six factor test to case facts).

[x] Wendy Koch, People Near “Fracking” Wells Report Health Woes, USA Today, (Sept. 10, 2014) (detailing Yale study of people’s health living near fracking wells).

[xi] Id. (noting statistics for skin irritation). “While 13% of those within a kilometer of a well said they had rashes and other skin symptoms, only 3% of those beyond 2 kilometers said the same.” Id.

[xii] Id. (suggesting results could also be caused by air contaminants, diesel exhaust from equipment, or leaks in well casings).

[xiii] Duke University, Contaminated Water in 2 States Linked to Faulty Shale Gas Wells, EurekAlert, (Sept. 15, 2014) (Explaining study conducted by scientist on groundwater contamination near wells). The study examined “eight clusters of wells — seven in Pennsylvania and one in Texas — with contamination, including increased levels of natural gas from the Marcellus shale in Pennsylvania and from shallower, intermediate layers in both states.” Id.

[xiv] Id. (explaining what gases were analyzed and their origin).

[xv] Thure E. Cerling, Noble gases identify the mechanisms of fugitive gas contamination in drinking-water wells overlying the Marcellus and Barnett Shales, Proceedings of the National Academy of Science of the United States of America,, (Aug. 12, 2014) (detailing study conducted on groundwater contamination of wells located in clusters around drilling sites).

[xvi] See Id. (concluding contamination source was not at depths where horizontal fracking occurred).

[xvii] For a further discussion on the results of the study, see Duke University, supra note 13.


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