Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing

Blake A. Watson, Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing, 11 Texas Journal of Oil, Gas, and Energy Law 1 (2016)

29 Pages Posted: 22 Feb 2016 Last revised: 23 Feb 2016

See all articles by Blake A. Watson

Blake A. Watson

University of Dayton School of Law

Date Written: February 1, 2016

Abstract

Courts should impose strict liability for earthquake damage caused either by hydraulic fracturing or the underground injection of frack fluids and associated wastewater. In determining whether a specific activity is abnormally dangerous, most courts have been guided by the six factors set forth in Section 520 of the Restatement (Second) of Torts. Recent scientific studies on “induced seismicity” (human-caused earthquakes) have established a strong link between the underground disposal of frack wastewater and significant seismic activity. One court has held that hydraulic fracturing is not an abnormally dangerous activity with regard to groundwater contamination. However, even if groundwater contamination claims should be considered under traditional negligence principles, the application of the six factors of Section 520 leads to a different conclusion with respect to earthquake damage claims. Earthquakes occur when subsurface formations are properly fractured. Likewise, the risk of earthquake damage is not substantially mitigated by the exercise of due care when frack fluids and associated wastes are injected into the ground. Furthermore, there are both judicial and statutory precedents for imposing strict liability for surface disturbances caused by oil and gas operations.

Keywords: fracking, fracturing, earthquakes, seismicity, strict liability, abnormally dangerous

JEL Classification: K13, K32

Suggested Citation

Watson, Blake A., Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing (February 1, 2016). Blake A. Watson, Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing, 11 Texas Journal of Oil, Gas, and Energy Law 1 (2016), Available at SSRN: https://ssrn.com/abstract=2735862

Blake A. Watson (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States
9372292621 (Phone)

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