Despite the intense scrutiny and focus on environmental issues relating to hydraulic fracturing in shale gas plays across the United States, the onslaught of anticipated litigation alleging impacts to human health or the environment has been slower to develop than originally anticipated. Since the first complaints were filed in 2009, there have been more than 40 lawsuits filed in state and federal courts alleging some level of harm to person, property or the environment caused by fracking or related activities. The following provides a brief overview of the current state of fracking litigation.
Current Focus: Common Law
The majority of fracking lawsuits filed to date have been filed based on common law theories of liability. The predominant claim by plaintiffs has been that, as a result of fracking of natural gas wells located near plaintiffs’ property, plaintiffs have suffered medical issues and their property, including groundwater wells, has become contaminated due to the release of contaminants to the land, water and air during the fracking process. Common-law theories of liability that have been asserted include: (1) public nuisance; (2) private nuisance; (3) trespass; (4) negligence; (5) negligence per se; (6) strict liability for abnormally dangerous activities; (7) fraud; (8) indemnification; and (9) contribution.
