Oklahoma resident can sue for alleged fracking-related earthquake injuries
August 6, 2015 - Kate Halloran
A woman in Oklahoma can sue oil and gas companies involved in fracking operations for injuries she suffered during an earthquake, the state supreme court has ruled. Sandra Ladra, a resident of Prague, Okla., was injured when a Nov. 2011 earthquake dislodged the rock-facing of the fireplace and chimney in her living room, causing debris to land on her lap and legs. She alleges that the earthquake resulted from fracking wastewater injection wells operated in central Oklahoma by the defendants, New Dominion, LLC, Spess Oil Co., and 25 John Does. The plaintiff claims the defendants are absolutely liable for their ultrahazardous activities and negligent for failure to use ordinary care in the operation and maintenance of the wells. She cites several geological studies in her complaint that have linked increasingly frequent earthquakes in Oklahoma to fracking wastewater injection wells. (Ladra v. New Dominion, LLC, 2015 WL 3982748 (Okla. June 30, 2015).)
The defendants argued that the Oklahoma Corporation Commission (OCC)—which regulates oil and gas operations, certain public utilities, and motor carrier safety, among other industries in the state—had exclusive jurisdiction over the case. The trial court agreed and dismissed the plaintiff’s case in Oct. 2014. In late June, the Oklahoma Supreme Court reversed that ruling and remanded the case.
The court found that “the OCC’s jurisdiction is limited solely to the resolution of public rights” and that the Commission is not equipped to deal with a dispute between private people or entities. The court noted that the corporate defendants “confuse[d] the statutory grant of exclusive jurisdiction to the OCC to regulate oil and gas exploration and production activities in Oklahoma, with the jurisdiction to afford a remedy to those whose common law rights have been infringed by either the violations of these regulations or otherwise.”
Attorney Jeffrey Mansell of West Palm Beach, Fla., who handles toxic tort and environmental litigation, said, “The OCC is a political body and is susceptible to all the ordinary political influences. A plaintiff forced to bring her dispute in front of a political body like that has the deck stacked against her. The strong opinion from the Oklahoma Supreme Court keeps the courthouse doors open for these disputes between private citizens and corporations.”
Hydraulic fracturing—or “fracking”—is a controversial process that stimulates production of underground oil and gas resources by pumping fluid, typically a combination of chemical additives and water, at high pressure into geological formations to open fractures. The excess fluid rises to the surface, where it is collected and either disposed of in surface water or dumped into underground injection wells. The environmental community has raised concerns about fracking, including the possible contamination of drinking water sources, the large amount of water used in the process, the potential for chemical spills, and the continued reliance on nonrenewable energy sources. And now the process is under fire for allegedly increasing the rate of earthquakes in areas with high concentrations of underground injection wells.
The United States Geological Survey (USGS) issued a statement last year that the frequency of earthquakes across the country has increased and that there is evidence to support that they are man-made occurrences. Between 1978 and 2008, Oklahoma averaged two 3.0 or greater magnitude earthquakes annually. But in 2014, there were 145 earthquakes of 3.0 or greater magnitude. The earthquake at the center of Ladra’s complaint registered 5.6—the largest earthquake in Oklahoma history.
The oil and gas industry has consistently disputed the connection between fracking-related activities and earthquakes, and proving causation likely will be the biggest obstacle ahead for Ladra. “Proving that the gas companies acted unreasonably or that the activity meets the definition of ‘ultrahazardous’ will not be easy, but I think anyone would perceive the biggest hurdle as causation. The emerging literature shows what I would consider an undeniable link between gas companies using wastewater injection wells and the high increase in earthquakes in Oklahoma. Somehow, the plaintiff needs to find a way to go beyond that link and articulate a theory of how particular injection wells are linked to the particular earthquake that injured her. In this regard, the case is similar to a toxic tort, in which a plaintiff can get tripped up over either general causation or specific causation,” Mansell said.
Ladra is not the only resident to sue for damages stemming from the Nov. 2011 earthquake. In February, Prague resident Jennifer Cooper filed a class action suit against the same defendants in the same court. Cooper seeks class action status for herself and the residents of nine central Oklahoma counties for private nuisance, negligence, absolute liability, and trespass. Her home suffered extensive destruction in the earthquake, resulting in $100,000 in damage and repairs.
Oversight by regulatory agencies similar to the OCC is common across the country, Mansell noted. “Depending on the political winds, these agencies may or may not be sympathetic to business, so lawyers need to be aware of what to do if a defendant is trying to get a case out of court and into the hands of sympathetic ‘regulators.’ The Ladra decision provides a roadmap for how to argue that issue.”
On July 17, the OCC announced that it was expanding efforts to address earthquake concerns by adding 211 disposal wells to an existing list of 300 wells that must reduce injection depth in the state’s largest geological formation. On July 27, several earthquakes shook Oklahoma, with three registering above a 4.0 magnitude.