Judging from the number of national litigation conferences that are focusing hydraulic fracturing, it appears that the trial lawyers are expecting to share in the profits of this successful industry. Engineers, hydrogeologists, health care professionals, insurance executives, state regulators, municipal officials, and attorneys are gathering at these events to share information and trends in liability arising from fracking operations.  Conversely, we believe in MORE JOBS, NOT MORE LAWSUITS.

We reviewed the issues on the agenda for a recent conference and found that it was packed with potential liability issues associated with fracking:

  • Personal injuries resulting from pre-drilling and exploration activities;
  • Exposure to hazardous chemicals used in fracking fluid (e.g., benzene, methane, formaldehyde);
  • Human health risk assessments for individuals and communities in close proximity to fracking operations;
  • Devaluation of private property;
  • Contamination of water supplies;
  • Air emissions;
  • Property damage from spills;
  • Federal, state, and local regulatory liability and enforcement actions;
  • Private property rights issues (eminent domain, access easements, etc.);
  • Third-party liability insurance coverage for entities subject to alleged fracking liability;
  • First-part property and business interruption coverage for entities engaged in fracking operations
  • Contribution and indemnity for entities engaged in production, transportation, and use of fracking materials;
  • Available regulatory, contract, and tort remedies for landowners and others allegedly harmed by fracking operations.

As a group, we need to come together and pool our resources to make certain we are ready to prevent frivolous lawsuits searching for deep pockets.

Fracking-related lawsuits have been filed in a number of states, including Texas. Many of these cases involve common law theories of liability: strict liability in tort, negligence, private nuisance, or physical trespass. Medical monitoring and emotional distress suits have also been prominent. Claims for damages run from the gamut from bodily injury, and lost property value, breach of quiet enjoyment of property to loss of business and punitive damages. In Arkansas claimants have filed ten class actions alleging air, water, and land contamination, as well as damages from seismic activity and several mass tort actions claiming illnesses and other injuries have likewise appeared on state court dockets.

Because most of the litigation is in its early stages, little guidance from the courts with respect to pretrial discovery, expert testimony, or summary judgment evidence has yet to surface. One thing is clear: with the sheer volume of fracking fluid being used in drilling operations all over the state, liability questions will continue to arise in the courts, regulatory agencies, and, eventually, the legislature.

Acknowledging this trend, on March 1st Texas House Speaker Joe Straus instructed the House Energy Resources Committee “to study the implications of hydraulic fracturing for the state’s energy needs, environmental policy, economic development, and other related priorities” and to [E]xamine ways to ensure appropriate state and local regulation of hydraulic fracturing that matches the needs and conditions of Texas.” The committee will also coordinate with the House Natural Resources Committee to study the use of water in fracking operations. Whether any legislation will result from these studies remains to be seen, but fracking has clearly become an issue of intense interest to Texas policymakers at various levels of government.

In order to stay abreast of these developments, the Texas Civil Justice League is forming a Hydraulic Fracturing Task Force as part of its standing committee on mass torts. This task force will collect information about existing and potential litigation, administrative and regulatory measures, and possible legislative responses to the regulation of or liability for fracking operations.

If you are interested in being part of this task force and working with us on matters of vital importance to the economic future of Texas, please contact us. Enclosed you will find membership information about the League and its 25-year history of improving the Texas business climate through constructive liability reform. Thank you for your interest and we look forward to hearing from you.

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