After six years and many reams of legal papers, two couples have just won a rare — and huge — $4.24 million jury verdict against a fracking company. The jury agreed with the evidence that Houston-based Cabot Oil & Gas Corp. contaminated their water wells in Dimock, Pennsylvania, with methane leaching underground from natural gas fracking sites. The case is significant because the two couples fought in court rather than go the usual route in fracking water pollution cases, which consists of reaching a financial settlement conditional on consenting to a gag order.
The gag order practice has been known to impose a lifelong vow of silence on children as young as 7 and 10, and along with trade secrets protection it is one of the reasons why fracking critics and regulatory agencies have had quite a bit of difficulty assembling a complete picture of the risks and impacts of fracking on the nation’s water resources.
Fracking in Pennsylvania
Pennsylvania is a fracking hotspot in the US, encompassing big chunks of the Marcellus and Utica shale formations within its borders. Until recent years, fracking (short for hydrofracturing) was virtually unknown there and other Marcellus states, but new drilling technology and a healthy dose of trade secrets protection unlocked a drilling boom after the Bush Administration created a loophole in the Clean Water Act.
The loophole enabled a patchwork of state regulations to take control, which range from fracking moratoriums and outright bans such as those in New York State and Maryland, all the way down to a free-for-all situation in Pennsylvania.
Fracking in Dimock, Pennsylvania
The case, Ely v. Cabot Oil and Gas Corp., is especially noteworthy because most of the 44 original plaintiffs in the case signed settlement agreements that included a “non-disparagement clause” that bars them from speaking about their experiences or the role that Cabot may have played in causing water in the region to become polluted…
According to DeSmogBlog, a big breakthrough in the case occurred when the court granted permission to testify for other nearby homeowners who had signed the gag order with Cabot.
The Associated Press has also been doing some notable reporting on the impacts of fracking. An account of the new $4.24 million verdict by Michael Rubinkam describes Cabot’s argument, that the “methane was naturally occurring” and predated the fracking operation.
That argument highlights one of the critical obstacles for bringing a water pollution case against fracking operations. At the time of the drilling, state regulations in Pennsylvania and elsewhere did not require drillers to benchmark water quality in nearby wells, leaving those impacted without the benefit of a before-and-after comparison.
Nevertheless, as described by Rubinkam the jury found that there was a compelling connection between the start of fracking and water quality problems in the area:
Residents first reported problems in the wells in 2008. The water that came out of their faucets turned cloudy, foamy and discolored, and it smelled and tasted foul. Homeowners, all of whom had leased their land to Cabot, said the water made them sick with symptoms that included vomiting, dizziness and skin rashes.
A state investigation found that Cabot had allowed gas to escape into the region’s groundwater supplies, contaminating at least 18 residential wells.
Cabot is planning to appeal the case but things don’t particularly look so good for the company. Apparently a drilling ban for Cabot is already in effect in the area and the chances of lifting that are dim.
According to a National Public Radio member report on the Dimock fracking case, last month the Pennsylvania Department of Environmental Protection had this to say:
Until they have demonstrated they are in compliance with the law, that the gas migration is over, they will not be permitted to drill in the nine-square mile area.
A Long Road Ahead For Fracking Cases
Despite the extreme health impacts alleged by the residents, the $4.24 million award was handed down only for property damage and “personal nuisance” suffered by the two couples.
The fracking related health claims were tossed before the case went to trial, along with claims of fraud and breach of contract involving the drilling leases signed by the property owners with Cabot, in agreement with a previous finding from April 2014.
The decision was issued in 2014, as described by the Pittsburgh Post-Gazette:
Judge Jones dismissed claims against Cabot for breach of contract, lost royalties, fraudulent inducement, negligence per se, medical monitoring, personal injury and certain negligence claims involving minors.
That doesn’t leave much to chew on, especially since the judge also sided with Cabot and left the company’s consent decrees with the Pennsylvania DEP out of evidence. Those orders were based on DEP’s finding that some of Cabot’s wells may have been “negligently constructed.”
It’s also worth noting that the breach of contract item was thrown out because the contract signed by the property owners did not require Cabot to test their wells before drilling on their property.
That doesn’t look so good for future fracking cases that involve alleged health impacts, so if you’re familiar with the legal issues, drop us a note in the comment thread.
Evidence Piling Up Against Fracking
On the other hand, issues related to improper depth, siting, and outright negligent fracking well construction may come into play as the industry comes under increased scrutiny.
A recent report from an industry-friendly natural gas research hub Stanford University took stock of the gas migration and water contamination issue, and concluded that the potential for methane to leach from fracking sites into wells and aquifers is quite small compared to the number of fracked wells in the US.
However, the research team logged two notable instances where there is a high potential for water contamination. One consists of drilling sites that are relatively shallow, and there are thousands of such sites in the US.
The other instance where water contamination can occur is when fracking wells are not constructed properly. The team noted one particularly egregious example where only the top and bottom of a deep well were properly encased, leaving a 4,000-foot stretch that “allowed gases to move up and down freely like a chimney and contaminate the drinking-water supply.”
Fracking And National Water Resources
In a long-awaited fracking assessment released last summer, the US Environmental Protection Agency noted that significant knowledge gaps, combined with a restrictive scope of work for the report, forced it to conclude that it could not determine any “widespread, systematic” impacts on drinking water resources.
Many observers hailed the report as vindication for fracking, but EPA clearly framed it within a cry for help, pleading for more information. Researchers, including the agency’s own Science Advisory Board, have been responding with vigor as described by Bloomberg last month:
Science advisers reviewing the EPA study said Monday the agency’s description isn’t good enough. During a six-hour teleconference, the Science Advisory Board review panel parsed the language, zeroing in on the phrase [“widespread, systematic”] as too vague and ambiguous to serve the public. A repudiation of the EPA’s conclusions could reignite debate over fracking and drive calls for more regulation.
The 31-member review panel is on track to ask the EPA to revise its top-line finding…
The panel will release its recommendations later this year, so fasten your seat belts.
Image: via US Geological Survey.