A one-of-a-kind lawsuit is emerging out of Oklahoma and quickly gaining national attention. The Sierra Club, an environmental advocacy group, has filed a lawsuit in the U.S. District Court for the Western District of Oklahoma against Chesapeake Energy Corp., Devon Energy Production Co., and New Dominion, accusing the three oil companies of causing earthquakes in Oklahoma and Kansas due to their hydraulic fracking activities.
The lawsuit stems from Oklahoma’s recent surge in earthquakes over the past year. The Sierra Club alleges that the companies’ practice of injecting liquid oil and gas waste into deep underground wells contributed to Oklahoma’s increase in earthquakes totaling more than 5,800 in 2015. This figure dwarfs the annual high of 167 in the years from 1977 to 2009, according to the complaint filed in early February.
According to its complaint, the Sierra Club is asking the court for an injunction against the oil companies, forcing them to restrict the amount of wastewater being injected underground in order to reduce the risk of earthquakes. Furthermore, the Sierra Club wants the court to force the oil companies to “reinforce vulnerable structures that current forecasts indicate could be impacted by large magnitude earthquakes” in the future.
While the sudden increase in earthquakes is enough to raise the eyebrows of environmental advocates around the country, many people remain baffled as to how the Sierra Club could create a strong enough causality chain to link the oil companies’ fracking procedures to the rise in earthquakes. The Sierra Club takes the position that, under the federal Resource Conservation and Recovery Act (“RCRA”), citizens can sue “any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). Accordingly, the Sierra Club relies on conclusions reached by the Oklahoma Geological Survey in the spring of 2015 that “the majority of recent earthquakes in central and north-central Oklahoma are very likely triggered by the injection of produced water and disposal wells.”
Although the defendant oil companies have not yet submitted an answer to the Sierra Club’s complaint, it is likely that they will present counter arguments raising various jurisdictional challenges, including standing. Defendants could support a standing argument by contending that the nature of the prospective harm is too speculative to pursue a claim in federal court. Furthermore, the defendants will likely point out that there is currently no legal precedent in “earthquake litigation” for a court to rely on in granting relief. As a case of first impression, the court may be more willing to hear and critically analyze each and every argument proffered by the parties.
The defendants’ answer is due this coming Friday. Until then, the nation’s legal community will dwell on what may be a groundbreaking case in environmental law.
The referenced case is Sierra Club v. Chesapeake Operating LLC, 5:16- cv-00134, U.S. District Court, Western District of Oklahoma (Oklahoma City).
http://www.insurancejournal.com/news/southcentral/2016/02/16/398797.htm
http://www.sierraclub.org/planet/2016/02/sierra-club-sues-over-oil-company-earthquakes
http://www.epa.gov/laws-regulations/summary-resource-conservation-and-recovery-act