In April 2014, press reports widely suggested that a Dallas, Texas case was the first large verdict awarded on the basis of environmental damages sustained due to fracking. One advocacy journalism website's description of the verdict was typical:
A Texas family claiming they were sickened because of pollution from hydraulic fracturing operations near their home should be awarded $2.95 million for their troubles, a jury ruled on Tuesday.
The Parr family had sued Aruba Petroleum Inc. in 2011, alleging the oil and gas producer exposed them to hazardous gases, chemicals and industrial waste that seeped into the air from 22 wells drilled near the family's 40-acre plot of land, which sits atop the Barnett Shale.
But Parr v. Aruba Petroleum did not, in fact, represent progress for plaintiffs' attorneys seeking to undermine the case for the safety of hydraulic fracturing. The plaintiffs in Parr had their fracking-specific complaints dismissed long before verdict. The $2.95 million award in the case was instead based on claims of physical and mental pain and loss of property value that are commonly brought against all types of oil and gas operations.
Even as some journalists used Parr to push an anti-fracking narrative, a bigger story has developed beneath the radar: The scientific foundation has continued to shift in favor of expanded energy exploration by professional operators. Scientific inquiry into hydraulic fracturing has increasingly demonstrated that expertly built and operated fracking operations pose few new environmental dangers. One late-2014 study, in particular, should be consulted when faced with a plaintiffs' attorney seeking to undermine the case for the safety of hydraulic fracturing: A comprehensive examination of 130 drinking water wells near natural gas operations in Pennsylvania and Texas. The study, which was published in September 2014 and conducted by scientists from Duke, Ohio State, Stanford, Dartmouth, and the University of Rochester, found eight instances of contaminated water wells near natural gas projects - seven in Pennsylvania and one in Texas. The study found no evidence that this water contamination was due to fractured shale; instead, flaws in the cement and steel tubing used to seal the outside of vertical wells at shallow depths were to blame for the contamination in each case.
Dr. Thomas H. Darrah, the study's lead author, told the New York Times that the contamination at the test sites was generally due to disruptions in the shallower gas-rich pockets above the shale. In a press release, Duke University gave specifics: "In four of the affected clusters, the team's noble gas analysis shows that methane from drill sites escaped into drinking water wells from shallower depths through faulty or insufficient rings of cement surrounding a gas well's shaft. In three clusters, the tests suggest the methane leaked through faulty well casings. In one cluster, it was linked to an underground well failure."
According to Dr. Darrah, as technological developments continue to improve well integrity, gas exploration companies can "probably eliminate most of the environmental problems with gas leaks." Investments by energy companies in improved well casings and tubing are likely to pay dividends in the future by protecting citizens from water contamination, and protecting investors from future lawsuits.
In the short term, the study's findings are most valuable for efforts to advance hydraulic fracturing projects through regulatory processes and defend them against opportunistic litigation. The study provides a ready-made rebuttal for assertions that water well contamination is specifically due to hydraulic fracturing. The methodology of study was described in depth by Duke University:
Using both noble gas and hydrocarbon tracers -- a novel combination that enabled the researchers to identify and distinguish between the signatures of naturally occurring methane and stray gas contamination from shale gas drill sites -- the team analyzed gas content in 113 drinking-water wells and one natural methane seep overlying the Marcellus shale in Pennsylvania, and in 20 wells overlying the Barnett shale in Texas. Sampling was conducted in 2012 and 2013. Sampling sites included wells where contamination had been debated previously; wells known to have naturally high level of methane and salts, which tend to co-occur in areas overlying shale gas deposits; and wells located both within and beyond a one-kilometer distance from drill sites.
The study should be kept close to hand by litigators and general counsel defending natural gas operations involved in hydraulic fracturing. Because the study's results are not yet commonly known, educating courts through prompt filings pursuant to Rule 702 of the Federal Rules of Evidence, and state equivalents, is a necessity. This education process will pay dividends for the natural gas exploration and production industry as a whole over time, as more judges and regulators become acquainted with the scientific literature establishing the safety and effectiveness of hydraulic fracturing.
Craig Warner
Houston
+1 713 276 7421
cwarner@kslaw.com
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