Geology,The Marcellus Shale, Experts and Dispute Resolution

54 Pages Posted: 2 Sep 2016 Last revised: 2 Nov 2016

See all articles by Itzchak E. Kornfeld

Itzchak E. Kornfeld

Hebrew University of Jerusalem - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: April 17, 2014

Abstract

Fracking, aka hydro-fracking or slickwater fracking, particularly in the Appalachian Basin, has yielded a good deal of legal scholarship. These articles have addressed a host of issues. However, that scholarship has yet to consider an indispensable topic: the science that underlies and controls the fracking process, and how it fits within the framework of dispute resolution. The present article seeks to fill that void by laying out a number of geological principles that undergird oil and gas development and wedding them to legal doctrinal concepts, specifically those that involve dispute resolution and the use of experts.

Indeed, as in any discussion of the environment or oil and gas exploration and production, knowledge of the geology of the subsurface terrain is essential. For example, if a well’s casing is not cemented correctly, or if a cement bond survey is faulty, a series of experts, including a cementing engineer or cement scientist, and a geologist, will need to demonstrate to the trier of fact what the proper cementing methodology or standard is,and whether it was followed. Similarly, if a plaintiff seeks medical monitoring as a consequence of a well operator’s actions, which may cause or have caused a plaintiff to become ill, experts in geochemistry, epidemiology, among others, will be required; or if a plaintiff asserts a claim for negligence or negligence per se a series of experts — including geologists or geological engineers — will need to testify regarding the defendant’s deviation from its duty and any subsequent breach. Finally, experts in geology, hydrogeology and hydrological modeling are needed in actions claiming fracking-related water contamination.

Keywords: Fracking, Geology, Oil & Gas, Expert Testimony, Fed. R. E. 702

JEL Classification: K10, K20, K23, K32, K40, K41, L95, N5, Q2, Q4

Suggested Citation

Kornfeld, Itzchak E., Geology,The Marcellus Shale, Experts and Dispute Resolution (April 17, 2014). 116 West Virginia Law Review, 916 (2014); Hebrew University of Jerusalem Legal Research Paper No. 16-40. Available at SSRN: https://ssrn.com/abstract=2426174

Itzchak E. Kornfeld (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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