Fracking and Legal Recourse: Attorney Weighs In

Bradford County, PADepending upon how you look at it, fracking may be good news--if it doesn’t affect you personally. It helps with the global climate because burning gas emits less carbon dioxide into the atmosphere than burning coal. And by supplying 30 percent of America’s natural gas, it’s arguably better for national security. But fracking comes at a cost: Attorney Ben Stewart has some advice for people who have suffered personal injury, property loss and more.

Q: (LawyersandSettlements): What are your clients’ main fracking complaints?
A: (Ben Stewart): They run the gamut, from ground, water and air (radon) contamination to earthquakes where there is little or no history of earthquakes. Fracking has even caused flammable kitchen faucets.

Q: Do you mean faucets have caught fire?
A: In Pennsylvania household taps actually caught fire, which resulted in companies being cited and fined. The PA Department of Environmental Protection fined Chesapeake almost $1 million for contaminating 16 families’ water wells with methane due to its improper drilling practices.

Q: Are many fracking cases being brought before a court and jury?
A: Fracking cases can be brought in a court of law. However, if the plaintiff has a contract with the drilling company, such as a mineral lease, often there is an arbitration agreement in that lease which prevents the cases from being brought in court and instead requires that they be filed in the non-public forum of arbitration.

Q: Can you explain “arbitration agreement”?
A: Sure. In the drilling company’s contract, where you agree to sell them mineral rights, there is a section referring to an arbitration agreement. This means that you are giving up your rights to bring any dispute arising out of that agreement in a court of law. Instead you and the drilling company must arbitrate.

Q: What steps can a person do before they call an attorney?
A: If a client has drilling on their property, they will need to provide us with a copy of the agreement they have with the mining company. And provide us with evidence of injury to their property.

If a client does not have drilling on their property they will simply have to provide us with documentation of the physical injury to the property. It may be a water quality report that shows elevations of hazardous materials in the water or a radon (air) test showing elevated radon levels.

Q: What other issues can justify a claim against drilling companies?
A: Farmers’ crops are dying, the fish in the pond die, or your livestock are sick. Your well shows elevated carcinogenic levels. We are looking at any incidents that are reducing your health and welfare or the value of your property.

Q: Are all your cases filed by the landowner?
A: We are basically looking at two, separate cases. For instance, some of our clients are landowners who signed an arbitration agreement with the drilling company as part of the mineral lease in their contract—they are selling their mining rights. Others cases are people who worked on the ranch or neighbors who have been exposed to contaminated well water.

Q: Faulty cementing is the leading suspect in possible sources of contamination. Does this mean lawsuits would target those who supply the well casings to the drilling companies?
A: Poor cementing was at fault with the $1 million Chesapeake violation. But the jury is still out: it could be faulty use on the part of the drilling companies. But the real problem is that there is no government regulation.

(Although the US Environmental Agency is conducting extensive field research into fracking, preliminary results aren’t expected until 2012. Until that time, environmental experts want a stay on drilling. And Congress has to act on the Safe Drinking Water Act...in 2005 Dick Cheney—former CEO of gas driller Halliburton—exempted fracking from regulation.)

Q: Have you reached any settlements with your clients?
A: Yes. Our litigation group recently settled on behalf of three northeastern Pennsylvania families through arbitration with a gas drilling company, Oklahoma-based Chesapeake Energy, over contaminated water wells. The arbitration trial took place in Bradford County, Pennsylvania. We were able to reach a $1.6 million settlement for the families (McMicken, Spencer, and Phillip) on the fourth day of arbitration. That amount was distributed among the three families though not equally. Unfortunately people have to relocate. Under the settlement terms, these families have to give Chesapeake their properties by the end of 2012.

Q: Are more families in this area filing claims?
A: Sadly, yes. Our group is representing about 30 other families in the region with similar claims.

Q: Is there a particular area in the US that you are currently litigating?
A: There are two distinct regions of interest: the Northeast US and Western US. Recently we have had positive results for our clients in the Northeast and our litigation group is confident that we can help other people damaged by this extreme form of drilling across the US.

To explain fracking and its dangers in a nutshell, the following is an excerpt from Scientific American, Nov. 2011:

If fracking is defined as a single fracture of deep shale, that action might be benign. When multiple fracks are done in multiple adjacent wells, however, the risk for contaminating drinking water may rise. If fracking is defined as the entire industrial operation, including drilling and the storage of wastewater, contamination has already been found. Advanced tests, such as putting tracer chemicals down a well to see if they reappear in drinking water, could ultimately prove whether fracking is safe or not. Some regulators are not waiting for better science; they are moving toward allowing fracking on an even wider scale.

The problem lies in horizontal fracking: Unlike conventional vertical fracking, this method requires huge amounts of water and chemicals .Further, gigantic ponds are also required to store the “flowback water” that is full of chemicals after it comes back up the hole after the wells have been fractured.