NEW TECHNOLOGY AND THE ANCIENT TORT OF TRESPASS: Can Fracking Be Undone By One Of The Legal System’s Oldest Torts?

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NEW TECHNOLOGY AND THE ANCIENT TORT OF TRESPASS: Can Fracking Be Undone By One Of The Legal System’s Oldest Torts?

 

Note: This article was previously published in THE FORUM – the newspaper of St. John’s University School of Law and the VALLEY LAWYER

I. Introduction

Energy independence has been an attractive goal for the United States for many decades.[1] Arguably, this country’s reliance on foreign fossil fuels has been a source of economic downturns,[2] created a form of national and international weakness and even led us to war.[3] So, when a convergence of extraction technologies and new discoveries of domestic natural gas plays occurred in the early 2000’s, there was a great deal of excitement regarding the possibility of the U.S. becoming both energy independent and eventually a net exporter. [4]

This new technology: hydraulic fracturing (or colloquially “fracking”) was in fact one that had been employed since the 1940’s[5] but had seen great improvements in efficiency over the years.[6] The size of the gas reserves that were suddenly brought into play were vast and spread widely over the lower forty-eight states promising new revenues and job creation. [7], [8]

But as the promise developed into the reality, some of the excitement subsided as harmful by-products were being associated with the windfall. Water sources were being polluted. Home values were being decimated in areas near fracking sites. Health concerns were being raised as the chemicals used in the process were being questioned as to how noxious they might be. And recent studies seem to be confirming these worries.

Now resistance to fracking among environmentalists and community organizers has hit a fever pitch with some municipalities and even entire states outright banning the process. [9] Community and nationwide groups have sprung up in resistance to allowing the practice to continue. With a good portion of the existing environmental legislation reflecting the interests of oil companies, citizens have begun looking to the courts to enjoin drillers and seek compensation for their damages. While settlements have become common, there are very few successful lawsuits where a fracking company is the defendant. This paper will explore one very old theory of liability and examine its application in the very modern context of hydraulic fracturing.

II. The Process and the Problem

Hydraulic fracturing or “fracking” is a method of extracting oil and gas found in previously difficult to reach subsurface geological formations.[10] The process separates and opens fractures in underground rock formations by pumping a mix of water, lubricants and “proppants”[11] at extremely high pressure to create fissures which allow trapped gas and oil to be recovered.[12] Because many companies have declared the cocktail of chemicals used in the process to be proprietary, it has been difficult to determine or predict fracking’s precise environmental impact. But some sources assert that over 70 different chemicals are used in these so called “fracking fluids” and most agree that the fluid composition essentially conforms to a standardized list of categories. [13], [14]  That is to say that the injected water contains:  “adilute acids,[15] biocides,[16] breakers,[17] corrosion inhibitors,[18] crosslinkers,[19] friction reducers,[20] gels,[21] potassium chloride,[22] oxygen scavengers,[23] pH adjusting agents,[24] scale inhibitors[25] and surfactants.”[26]

Estimates of the ratio of chemicals to water vary from .05% – 2% chemicals to 99.5% – 98% water[27] but some go as high as 10% of the fluid being comprised of chemicals and additives.[28]  If some estimates are correct that the average hydro-fracturing well requires 3 to 8 million gallons of water over its lifetime,[29] then a conservative calculation puts the amount of chemicals used  (discounting the water) at roughly 37,500 gallons per well.[30] More than 70% of that quantity, or 26,250 gallons of those chemicals, can remain in the surrounding permeable subsurface area.[31]

Often the challenge is that the same subsurface area contains water that is used in wells for drinking or what are legally classified as “percolating waters.” Percolating waters” were once described as those waters which “ooze, seep, or filter through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose”[32]

In fact, two concurrent problems can arise. The first is the introduction of the chemicals (including known and suspected carcinogens)[33] and the second is the forcing of natural gas into previously potable water. With respect to the latter, once iconic images of homeowners being able to light a fire at the end of their home garden hose or faucet have been dismissed by some state agencies and courts as having sources unrelated to fracking[34] or proven to be hoaxes. [35] Still, the comingling of potable water and fracking fluid creates serious health concerns.[36]

Understandably, when faced with the prospect of having a source of possible illness nearby and the financial implication for home valuations (including “environmental stigma”[37]), residents of communities have looked for both legislative and jurisprudential remedies. For example, on the legislative side, some communities have voted to ban the process altogether.[38] A search for relief in the courts has relied on a variety of theories of liability to limit the practice.[39] Some have asserted relatively modern assertions of damages such as failure to create a medical monitoring fund[40] but invariably almost every fracking suit contains a claim for the ancient tort of trespass.

III. Trespass: possession, entry,and damages

A trespass, at the most basic level is “a direct infringement of another’s right of possession.”[41] To succeed on a claim a plaintiff need only show: (1) possession of the property at the time the trespass was committed, (2) an unauthorized entry by the defendant; and (3) resulting damage to the plaintiff.[42] Or, put another way, a trespass is a physical act or force against an individual’s property, executed without the property owner’s consent which interferes with a possessory interest in that property.[43] Whether a plaintiff is required to show actual harm incident to damages is less clear and may depend on the type of possessory interest at stake and the intent of the defendant.[44] A trespass does not require that the person charged actually traverse the land; only that the person be the source of a trespassing instrumentality.[45] Also, the social utility of the trespasser’s actions do not usually excuse him from liability.[46] Since subsurface trespass has been a cognizable claim since at least the 1920’s,[47] it would seem relatively simple for a potential plaintiff to make a colorable claim of trespass where he finds fracking fluids in his subsurface property.

Possession

To establish a trespass it is fundamental that the claimant landowner have a possessory interest in land or property that is violated.[48] For many years the common law provided a simple rule for landowners: Cuius est solum eius est usque ad coelum et ad inferos, which, liberally translated, means that whoever owns a parcel of land owns the sky above it and the ground below.[49] Understanding that the modern era made such expansive definitions no longer practicable, landowners’ rights were limited to, at least above with respect to the sky, “as much of the space above the ground as the can occupy or use in connection with the land.”[50]

On the other hand, minerals found under a landowner’s property were generally something considered to be “constituent elements of the land itself.”[51] Usually when one thinks of minerals, they think along the lines given by the Merriam Webster Dictionary, that is to say “a substance (such as quartz, coal, petroleum, salt, etc.) that is naturally formed under the ground.”[52] Black’s Law Dictionary broadens the definition to include not only subsurface materials but “any inorganic material that has a definite chemical composition and specific physical properties that give it value.”[53] Since the term “mineral” is especially broad in in the legal sense, it is not surprising that courts have found that not only do gas and oil qualify as underground minerals, but, unless precluded by statute, underground water qualifies as well.[54]

Another linguistically challenging legal principle relevant to possession was introduced in the late 19th century when courts began to consider oil, water and gas – because of their transitory nature – as Feræ Naturæ, or analogous to wild animals.[55] As such, these mineral belonged to the owner only “so long as they are on or in [the owner’s land], and are subject to his control.”[56] Out of this reasoning grew the famous rule of “capture” which states that minerals, originally found under one landowner’s parcel, that are recovered through the drilling activities of an adjacent landowner, become the adjacent landowner’s property because the “fugacious”[57] mineral has “migrated” to the subsurface of the adjacent landowner’s parcel.[58] However, because of the indispensability of water for maintaining life, courts have not always applied the rule of capture as readily as they might in an oil and gas context.[59] Similarly, where the migration is forced by the adjacent parcel holder’s activities (e.g. through the injection of a liquid), some courts have refused the applicability of the rule of capture and found an actionable trespass.[60]

One notable view regarding possession was introduced in the Texas Supreme Court decision Coastal Oil & Gas Corp. v. Garza Energy Trust because it highlights the role of the possessory interest in a trespass inquiry. The plaintiff claiming trespass in Garza was a lessor with “only a royalty interest and the possibility of reverter”[61] This was fatal to his trespass claim because his interest was only reversionary rather than actual. The distinction is significant because many homes in the United States are sold without a conveyance of the mineral rights.[62] These rights are often retained by developers and later conveyed via lease agreements. A natural inference from this phenomenon is that a trespass claim may not be available to a surface owner who has somehow, either via lease or sale, separated his ownership of the land from his ownership of the minerals below, irrespective of the harm that may occur. So, using Garza’s logic, a lessor or someone who does currently own the mineral rights to their land cannot make a claim for subsurface trespass irrespective of the harm.

Entry

Because fracking is conducted underground, proving the actual entry of the fluids or gas belonging to a particular defendant into the subsurface property of the plaintiff has been problematic. In other words, the presence of fracking fluid under may establish and entry but it does not establish who has entered.  A tempting approach to establish entry where fracking fluid is found in the plaintiff’s groundwater is to employ the doctrine of res ipsa loquitur to establish that a negligent trespass has occurred.[63] The doctrine has been applied in contamination cases but proving that one defendant had exclusive control over the instrumentality of the harm can prove difficult where there are multiple drilling operations.[64] Additionally, assertions that a plaintiff’s groundwater was contaminated only after the arrival of neighboring fracking operations without more substantive proof of entry have been seen as relying on the fallacy post hoc ergo propter hoc.[65]

There have been some advances in isolating fracking fluids in percolating waters, including some very recent work using “tracers” (essentially testing water for boron and lithium isotopes related to fracking fluid), but even this new technology cannot trace back the water to a given drill site.[66] On the other hand, where there is only one potential source of the contaminant, entry is treated generally as being stipulated and courts move on to consider more contentious issues such as whether consent was given or the legitimacy of the ownership claim.[67]

Damages

The scope of damages claimed in fracking litigation run from the traditional to more modern forms.[68] This should be unsurprising given the ever increasing amount of evidence linking the process to environmental damage and health risks.[69]  Traditionally, the common law has always seen the damages in a trespass as “injury to the possession” (i.e. the right to absolute control over the thing). [70]  Some jurisdictions will require proof of actual harm from contamination of the property before damages or injunctive relief can be awarded.[71] But if a plaintiff can prove that the trespass was intentional, damages should be available even where there is no provable harm.[72]

The usual measure of damages for permanent injury to land is the fair market value of the land before and after the injury[73] but, where there are other damages, this is not the only award available.[74] Depending on the jurisdiction, a plaintiff may be able to recover “the benefits obtained” by the trespasser, including any profits from the activity.[75] Should a defendant succeed in proving that there was no threat to human health (because chemicals were below tolerable levels), a plaintiff may still recover cleanup costs.[76] Costs related to physical illness damages should be recoverable as well since “[t]he goal of tort damages is to compensate the injured landowner for any and all losses that result from the conduct for which the defendant is liable, including the loss of the use of the property, if any, and any separate injuries in the nature of discomfort, annoyance or physical illness.”[77]

Where a plaintiff may be required to show actual harm, some courts have issued Lone Pine orders compelling plaintiffs to show: the precise amount of the injurious chemical to which the plaintiff was exposed, the precise illness or disease alleged to have resulted from exposure to that chemical and evidence of causation.[78] The orders often specify that causation must be shown through expert testimony and failure to present that testimony can result in summary judgment for the defendant or a dismissal with prejudice.[79] A showing of this specificity can be difficult where the injurious chemical is also considered proprietary.[80] But the practice of issuing Lone Pine orders has been overturned at the appellate level. Specifically this happened in a case where the order was issued without allowing the plaintiffs to obtain sufficient information to make a prima facie showing that harm occurred and that the harm was related to the fracking activity.[81]

Nonetheless, civil awards are beginning to appear for illnesses and property damage related to fracking. In April of 2014 one family living in Decatur, Texas received $3 million dollars after experiencing nosebleeds, nausea and other symptoms. While the claim in Parr et al. v. Aruba Petroleum Inc. et al.,[82] sounded in nuisance, it was still seen as a major victory for plaintiffs claiming damages from fracking operations.

Unfortunately, such victories are relatively far and few between and some courts have engaged in some very tortured logic in an effort to find that no harm as occurred in a fracking case. For instance, in Garza, the Texas Supreme Court was presented with where the defendant used subsurface injection of fluids in an area where the geological formations are so tight that “natural gas cannot be commercially produced without hydraulic fracturing,”  – something that would seem to imply a bounded space. The defendants’ fracking operations led to drainage from the plaintiff’s subsurface property that would not have naturally occurred with traditional drilling techniques. The court in Garza felt it best to apply the rule of capture and dismiss the claim. To put it a little more crudely, the Texas Supreme Court found no harm where a party chased the wild animals off of another party’s land with the intention of keeping them. This seems like an odd proposition in a state where cattle rustling cases still are regularly decided against the accused.[83] The more grounded and truthful rationale probably lies in the concurrence which speaks to a public policy decision to encourage the production of natural gas.[84]

In any event it seems sure that damages, whether just to the proprietary interest or if manifested in direct physical symptoms, will continue to be a point of contention in future litigation.

IV. Conclusion

Fracking may have once provided hope that the U.S. would become energy independent with respect to fossil fuels and that hope may not be displaced. Still, the human cost of the process must be considered as well and it seems that every new study points to the fact that the health concerns of people living close to fracking operations are well founded. If tort law serves several functions, it most surely serves the function of “express[ing] our shared beliefs as to fundamental rules that govern the conduct of others in our society”[85] and “to vindicate social policy.”[86] Our society was constitutionally created with the idea of protecting property in mind.[87] So why would we forgo the right of a property owner to be free of trespassers just for the possibility of cheaper oil or more local energy when our collective health may be much more precious?

Sources:
[1] John Ydstie, Is U.S. Energy Independence Finally Within Reach?, NPR, (March 7, 2012 12:01am) available at:  http://www.npr.org/2012/03/07/148036966/is-u-s-energy-independence-finally-within-reach.
[2] Paul Lines, How the 1970’s Oil Crisis Affected the US Economy, Humanities 360, (August 4, 2011)  available at: http://www.humanities360.com/index.php/how-the-1970s-oil-crisis-affected-the-us-economy-11690/

[3] Nafeez Ahmed, Iraq invasion was about oil, The Guardian, (March 20, 2014) available at: http://www.theguardian.com/environment/earth-insight/2014/mar/20/iraq-war-oil-resources-energy-peak-scarcity-economy

[4] John Ydstie, Is U.S. Energy Independence Finally Within Reach?, NPR, (March 7, 2012 12:01am) available at:  http://www.npr.org/2012/03/07/148036966/is-u-s-energy-independence-finally-within-reach; Nicholas Sakelaris, Exxon: North America will be a net exporter, oil will last 150 years, Dallas Business Journal, (December 9, 2014) available at: http://www.bizjournals.com/dallas/news/2014/12/09/exxon-north-america-will-be-a-net-exporter-oil.html?page=all

[5] Craig Miner, Discovery! Cycles of Change in the Kansas Oil & Gas Industry 1860-1987, 218 (1987)(“Hydraulic fracturing techniques were being employed in Kansas oil fields as early as 1948.”).

[6] Susan Brantley and Anna Meyendorff, The Facts on Fracking, The New York Times, (March 13, 2013) available at: http://www.nytimes.com/2013/03/14/opinion/global/the-facts-on-fracking.html?pagewanted=all.

[7] Cassarah Brown, State Revenues and the Natural Gas Boom: an Assessment of State Oil and Gas Production Taxes, National Conference of State Legislatures, (June 2013) available at: http://www.ncsl.org/research/energy/state-revenues-and-the-natural-gas-boom.aspx

[8] Shale gas Boosting Job Creation, What Is Fracking (October 29, 2012) available at: http://www.what-is-fracking.com/shale-gas-boosting-job-creation/

[9] Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, New York Times (December 17,2014) available at: http://www.nytimes.com/2014/12/18/nyregion/cuomo-to-ban-fracking-in-new-york-state-citing-health-risks.html  

[10] Joseph A. Dammel, Notes from Underground: Hydraulic Fracturing in the Marcellus Shale, 12 Minn. J.L. Sci. & Tech. 773, 774-75 (2011)

[11] “Proppants” or Proppant Agents are granular substances, including sand grains, aluminum pellets, or other material, that are carried in suspension by the fracturing fluid and serve to keep the cracks open when fracturing fluid is withdrawn after a fracture treatment. (Source: OilGasGlossary.com, http://www.oilgasglossary.com/propping_agent.html).

[12] Id.

[13] See e.g., http://fracfocus.org/chemical-use/what-chemicals-are-used

[14] Source: http://geology.com/energy/hydraulic-fracturing-fluids/

[15] E.g. hydrochloric acid or muriatic acid for helping dissolve minerals and initiate cracks in the rock

[16] E.g. glutaraldehyde for eliminating bacteria in the water that produce byproducts in the water that cause corrosion

[17] E.g. ammonium persulfate, allowing for a delayed break down of the gel polymer chains

[18] E.g. N n-dimethyl formamide to prevent pipe corrosion

[19] E.g. borate salts, to maintain fluid viscosity as temperature increase

[20] E.g. polyacrylamide and mineral oils to minimize friction between the fluid and the pipe

[21] E.g. guar gum or hydroxyethyl cellulose to “thickens the water in order to suspend the sand”

[22] To create a brine carrier fluid

[23] E.g. ammonium bisulfate, which removes oxygen from the water to prevent corrosion

[24] E.g. sodium or potassium carbonate, which “[m]aintains the effectiveness of other components, such as crosslinkers”

[25] E.g. ethylene glycol to prevent scale deposits in the pipe

[26] E.g. isoproponal to increase viscosity in the fracturing fluid

[27] Source: http://geology.com/energy/hydraulic-fracturing-fluids/

[28] Source: http://www.westword.com/2013-06-13/news/whats-in-fracking-fluid/full/

[29] Ground Water Protection Council; ALL Consulting, DOE Office of Fossil Energy and National Energy Technology Laboratory. pp. 56–66 (April 2009).

[30] 3 million gallons of fluid x (the average of .05% and 2% chemicals)

[31] Penny, Glenn S.; Conway, Michael W.; Lee, Wellington . Journal of Petroleum Technology (Society of Petroleum Engineers) 37 (6): 1071–1081Control and Modeling of Fluid Leakoff During Hydraulic Fracturing (June 1985) (“During the process, fracturing fluid leakoff loss of fracturing fluid from the fracture channel into the surrounding permeable rock occurs. If not controlled, it can exceed 70% of the injected volume.”).

[32] Clinchfield Coal Corp. v. Compton, 148 Va. 437 (1927)(adding that “[t]he fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters.”).

[33] David Manthos and David Darling, Cancer-Causing Chemicals Unsed in 34% of Reported Fracking Operations, Skytruth, (January 22, 2013) available at: http://blog.skytruth.org/2013/01/carcinogens-fracking.html. (Known carcinogens used in one sample included naphthalene, benzyl chloride and formaldehyde.).

[34] Press release from Colorado Department of Natural Resources: State Oil and Gas Conservation Commission on the documentary “Gasland” (available at: http://cogcc.state.co.us/library/GASLAND%20DOC.pdf)

[35] See e.g., Order of 43rd Judicial District of Texas in the Matter of Steven and Shyla Lipsky v. Durant et al v. Alisa Rich dated February 16, 2012 (available at: http://www.barnettshalenews.com/documents/2012/legal/Court%20Order%20Denial%20of%20Lipsky%20Motion%20to%20Dismiss%20Range%20Counterclaim%202-16-2012.pdf).

[36] See e.g., National Institute of Environmental Health Services report: “Birth Outcomes and Maternal Residential Proximity to Natural Gas Development in Rural Colorado” (January 28, 2014)(finding a correlation between congenital heart defects in newborns and the mother’s living proximity to fracking wells)(available at: http://ehp.niehs.nih.gov/wp-content/uploads/122/1/ehp.1306722.pdf); National Institute of Environmental health Services Report: “Proximity to Natural Gas Wells and Reported Health Status: Results of a Household Survey in Washington County, Pennsylvania” (September 10, 2014)(finding higher incidences of skin conditions and upper respiratory conditions in people living less than  1 km from a fracking well compared to people living more than 2km from a well)(available at: http://ehp.niehs.nih.gov/wp-content/uploads/advpub/2014/9/ehp.1307732.pdf).

[37] See e.g., Chance v. BP Chemicals, Inc., 77 Ohio St. 3d 17, 27 (Ohio 1996).

[38] Peggy Heinkel-Wolfe, Denton Fracking Ban Passed in Landslide, Dallas News, (November 5, 2015) available at: http://www.dallasnews.com/news/politics/local-politics/20141105-denton-fracking-ban-passed-in-landslide1.ece ;Fracking Ban Passes in 2 of 3 California Counties, AP, (November 5, 2014) available at:  http://tbo.com/ap/politics/fracking-ban-passes-in–of–california-counties-ap_politics7f7fb83fc0a44cadb6ca30cbb138e468.

[39] 4 Toxic Torts Litigation Guide § 44:14 (noting trespass, negligence, negligence per se, and medical monitoring as a few of the theories of liability asserted in recent cases).

[40] See e.g., Berish v. Sw. Energy Prod. Co., 763 F. Supp. 2d 702 (M.D. Pa. 2011).

[41] Padilla v. Lawrence, 101 N.M. 556, 563 (N.M. 1984).

[42] 4 Modern Tort Law: Liability and Litigation § 38:1 (2d ed.)

[43] Ford v. Baltimore City Sheriff’s Office, 149 Md. App. 107, 129, 814 A.2d 127, 139, 2002 WL 31875122 (2002).

[44] Compare, Tibert v. Slominski, 692 N.W.2d 133, 137 (N.D. 2005)(“A person who commits a trespass is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.”); Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 10 (Tex. 2008)(“…a landlord … must show more than the trespass—namely, actual permanent harm to the property of such sort as to affect the value of his interest.”).

[45] Herrin v. Sutherland, 74 Mont. 587 (Mont. 1925)(firing a shotgun over the land of another while not situated on the plaintiff’s land is a trespass).

[46] See e.g., Longenecker v. Zimmerman, 175 Kan. 719, 721 (Kan 1954)(“Since from every unauthorized entry into the close of another, the law infers some damage, nominal damages are recoverable therefor even though no substantial damages result and none are proved.”).

[47] See e.g,, Edwards v. Sims, 232 Ky. 791, 24 S.W.2d 619, 621 (Ky. 1929); Also, Gliptis v. Fifteen Oil Co., 204 La. 896, 904 (La. 1943).

[48] 75 Am. Jur. 2d Trespass § 20 (The elements of trespass to real property are possession of the property by the plaintiff when the alleged trespass was committed, an unauthorized entry by the defendant, and damage to the plaintiff from the trespass.).

[49] AD COELUM ET AD INFEROS, Black’s Law Dictionary (9th ed. 2009)

[50] United States v. Causby, 328 U.S. 256, 264 (1946).

[51] United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyoming, 304 U.S. 111, 116 (1938). But see, Owen L. Anderson, Subsurface “Trespass”: A Man’s Subsurface Is Not His Castle, 49 Washburn L.J. 247 (2010)(arguing that “[t]he law of trespass need no more be the same two miles below the surface than two miles above” and therefore subsurface trespass should not be actionable when “the trespasser’s …intrusion accomplishes an important societal need, including private commercial needs, and so long as the subsurface owner suffers no actual and substantial damages,….”).

[52] “Mineral.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 6 Nov. 2014. <http://www.merriam-webster.com/dictionary/mineral>.

[53] MINERAL, Black’s Law Dictionary (9th ed. 2009).

[54] See, Rosette Inc. v. United States, 277 F.3d 1222, 1228 (10th Cir. 2002)(“[The Supreme Court] concluded that water could in fact be a mineral in the broadest sense of the word.”); See also, Andrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978)(holding  Congress did not intend water to be considered a locatable and valuable mineral for the purposes of a federal mining statute) But see¸ Butler v. Charles Powers Estate ex rel. Warren, 620 Pa. 1, 22, 65 A.3d 885, 898, 2013 WL 1749828 (2013)(“[T]he rule in Pennsylvania is that natural gas and oil simply are not minerals because they are not of a metallic nature, as the common person would understand minerals.”).

[55] Westmoreland & Cambria Nat. Gas Co. v. De Witt, 130 Pa. 235, 249-50 (1889).

[56] Id.

[57]Definition: Apt to flee away or flit; volatile; Source: “fugacious, adj.” OED Online. Oxford University Press, September 2014. Web. 1 November 2014.

[58] Elliff v. Texon Drilling Co., 146 Tex. 575, 581  (1948)( Capture rule simply is that the owner of a tract of land acquires title to the oil **562 or gas which he produces from wells on his land, though part of the oil or gas may have migrated from adjoining lands.).

[59] See e.g., Canada v. City of Shawnee, 1936 OK 803  (Okla. 1936)(“If the theory is that of ownership by capture, such as is usually applied in exploration for oil, it still is not at all necessary that we blindly follow such theory to such extremes [in a water context] as will lead to gross injustice.”).

[60] Young v. Ethyl Corp., 521 F.2d 771 (8th Cir. 1975).

[61] Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008).

[62]Michelle Conlin and Brian Grow, SpecialReport: U.S.builders hoard mineral rights under homes, Reuters, (October 9, 2013) available at:  http://www.reuters.com/article/2013/10/09/us-usa-fracking-rights-specialreport-idUSBRE9980AZ20131009

[63] Bahrle v. Exxon Corp., 652 A.2d 178, 192 (N.J. App. Div. 1995) aff’d, 145 N.J. 144 (1996)(“Res ipsa loquitur permits an inference of negligence from plaintiff’s proofs where (1) the occurrence itself ordinarily bespeaks negligence; (2) the instrumentality causing the injury was within the defendant’s exclusive control; and (3) there is no indication in the circumstances that the injury was the result of plaintiff’s own voluntary act or negligence.”).

[64] Ivory v. Int’l Bus. Machines Corp., 964 N.Y.S.2d 59 (Sup. Ct. 2012) aff’d, 116 A.D.3d 121, (App. Div. 2014) leave to appeal denied, 23 N.Y.3d 903 (2014)(“The court finds that the element of exclusive control, be it of the chemicals or property, need not require plaintiffs to “eliminate every alternative explanation for the event[….]”  Rather, plaintiffs are only required to “[d]emonstrate that the likelihood of causes other than [defedant’s] negligence is so reduced that the greater probability lies at [defendant’s] door, rendering it more likely than not that the injury was caused by defendant’s negligence.”); Tucker v. Sw. Energy Co., 2012 WL 528253, at *2 (E.D. Ark. Feb. 17, 2012) (“Missing are particular facts about particular [f]racking operations by particular fracking companies using particular substances that allegedly caused the Berrys’ air problems and the Tuckers’ water problems. General statements about the many dangerous substances used in fracking, and conclusory statements about the migration of those substances, will not suffice.”).

[65] Tucker v. Sw. Energy Co., 2012 WL 528253, at *2 (E.D. Ark. Feb. 17, 2012)(“As they stand, the complaints … are mostly a matter of “after this, therefore because of this”—bad things happened after the fracking, and therefore because of the fracking. But this fallacy is not sound as a matter of logic or law.”).

[66] Duke University, New tracers can identify frack fluids in the environment, Science Daily, (October 20, 2014) Available at:  http://www.sciencedaily.com/releases/2014/10/141020090320.htm

[67] See e.g., FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 383 S.W.3d 274, 282 (Tex. App. 2012), review granted (Nov. 22, 2013).

[68] 4 Toxic Torts Litigation Guide § 44:5 (“Contamination of underground water from spills could result in personal injuries to human beings who ingest it, devaluation and damage of property, death to wildlife and destruction of ecosystems.”).
[69] See, Sebastian Doggart, Frack and ruin: the rise of hydraulic fracking, The Telegraph, (May 6, 2011)  available at:  http://www.telegraph.co.uk/finance/personalfinance/offshorefinance/8488166/Frack-and-ruin-the-rise-of-hydraulic-fracturing.html; See also, Jamie Smith Hopkins, High Levels of Dangerous Chemicals Found in Air Near Oil and Gas Sites, National Geographic, (October 30, 2014) available at:
http://news.nationalgeographic.com/energy/2014/10/141030-dangerous-chemicals-in-air-near-oil-and-gas-sites-study/.

[70] Slye v. Guerdrum, 29 App. D.C. 550, 552, 1907 WL 19759 (D.C. Cir. 1907)(“ It is, of course, axiomatic that at common law the gist of the action of trespass quare clausum fregit is injury to the possession.”).

[71] See e.g., Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008).

[72] Restatement (Second) of Torts § 158 (1965)(“One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionallyenters land in the possession of the other, or causes a thing or a third person to do so.”(emphasis added)).

[73] See e.g., Williams v. Amoco Prod. Co., 241 Kan. 102, 110 (1987).

[74] Ettus v. Orkin Exterminating Co., 233 Kan. 555, 561-62 (1983)(citing Foster v. Humburg, 180 Kan. 64 (1956)(“One who commits a tortious act is liable for the injury and loss that are the natural and probable result of his wrongful act.”)).

[75] Starrh & Starrh Cotton Growers v. Aera Energy LLC, 153 Cal. App. 4th 583, 604 (2007)(“WatsonLand Co. v. Shell Oil Co. 130 Cal.App.4th 69(2005)] observed that the history of the “statute demonstrates that the Legislature intended to eliminate financial incentives for trespass by eradicating the benefit associated with the wrongful use of another’s land.”).

[76] See Abrams v. Ciba Specialty Chemicals Corp., 663 F. Supp. 2d 1243, 1256 (S.D. Ala. 2009)(holding that defendant was still liable for cleanup costs where DDT levels sprayed on plaintiffs’ land were below levels that threatened human health.).

[77] Hendricks v. Allied Waste Transp., Inc., 2012 COA 88, 282 P.3d 520, 524, 2012 WL 1881004 (Colo. App. 2012)

[78] 4 Toxic Torts Litigation Guide § 44:19.

[79] Id.

[80] John Craven, Fracking Secrets: The Limitations of Trade Secret Protection in Hydraulic Fracturing, 16 Vand. J. Ent. & Tech. L. 395, 402 (2014)(“However, the secrecy exercised to protect [drilling companies’] proprietary mixtures has fed increased speculation and suspicion about what the fluids contain.”)(internal citations omitted).

[81] See e.g., Strudley v. Antero Res. Corp., 2013 WL 3427901 (Colo. App. July 3, 2013) cert. granted, 2014 WL 1357327 (Colo. Apr. 7, 2014).

[82] No. cc-11-01650, verdict returned (Tex. District Court, Dallas County Apr. 22, 2014).

[83] See e.g., Flores v. State, 2013 WL 2257439, at *1 (Tex. App. May 9, 2013).

[84] Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d , 461 (Tex. 2008)(J. Willett, concurring)(“ The Legislature has made it the policy of this state to encourage secondary recovery of minerals,…”).

[85] Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 327 (N.J. 2013).

[86] Steigman v. Outrigger Enterprises, Inc., 126 Haw. 133, 141 (Haw. 2011).

[87] U.S. Const. Amend V.


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