Geology, the Marcellus Shale, Experts, and Dispute Resolution

53 Pages Posted: 18 May 2014

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: May 16, 2014

Abstract

Fracking, a/k/a 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.

As litigation over the foregoing issues increases, courts and lawyers will need to understand what occurs in the subsurface and why. They will also have to familiarize themselves with the vocabulary of geologists, engineers, drilling crews, landmen, and the cast of other players in the hydrocarbon exploration and development field. Awareness and comprehension of scientific principles and their lexis will also aid lawyers, judges, arbitrators, and mediators in resolving disputes between plaintiffs and defendants, competing operators (oil and gas companies), lessors in dispute resolution, surface landowners and lessees, and owners of mineral/subsurface rights, as well as between drillers and operators.

The aim of the present Article then is to place the science of geology and its interpretations — whether by observation, experimentation, or by expert testimony — within the framework of dispute resolution. The Article however does not address either the geology or the science of the fracking process. Accordingly, the section titled “The Science: Petroleum Geology 101” is definitional, describing such geological phenomena and concepts as oil and gas traps, facies, porosity and permeability, among others. However, the reader is forewarned that the geological descriptions, terms, and diagrams employed here are not, and indeed cannot, be a complete narrative or account of the geological sciences as they relate to oil and gas exploration and production, due to the complex nature of the geology of each basin or play. This discussion therefore provides the foundation for the remainder of the Article. In this part of the Article, just as in the whole, I follow the example of geological literature, and by employing graphics and pictures I ascribe to the adage that a picture is worth a thousand words.

Suggested Citation

Kornfeld, Itzchak E., Geology, the Marcellus Shale, Experts, and Dispute Resolution (May 16, 2014). West Virginia Law Review, Vol. 116, No. 916, 2014. Available at SSRN: https://ssrn.com/abstract=2437925

Itzchak E. Kornfeld (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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