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
Date Written: February 1, 2016
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: Suggested Citation