Academic journal article Canada-United States Law Journal

Hydraulic Fracturing Litigation: The Case of Jessica Ernst & the Problem of Factual Causation

Academic journal article Canada-United States Law Journal

Hydraulic Fracturing Litigation: The Case of Jessica Ernst & the Problem of Factual Causation

Article excerpt

TABLE OF CONTENTS  I. Introduction  II. Hydraulic Fracturing      A. A Brief History of Hydraulic Fracturing     B. Controversy  III. Hydraulic Fracturing Litigation  IV. Case Study: Ernst v EnCana Corp      A. Background     B. Proceedings to Date     C. Analysis of Negligence Claim: An Issue of Cause-in-Fact  V. The Defects of Tort: Common Law Remedies Are Not the Answer      A. Tort Law Deficiencies     B. The Need for Strict Regulation  VI. Conclusion 

I. INTRODUCTION

Hydraulic Fracturing (or 'tracking') litigation is on the rise. (1) In the United States, it is now common for plaintiffs to allege that hydraulic fracturing processes have contaminated groundwater sources. (2) The primary purpose of this paper is to examine the common law remedies available to plaintiffs in these cases. I argue that the common law, because of the requirement of factual causation, is inadequately equipped to provide redress to plaintiffs in these cases. A more proactive approach, through strict regulation, is necessary to protect people and the environment in the face of presently uncertain geological effects of hydraulic fracturing.

In Part II, I will briefly outline the historical origins of hydraulic fracturing, its modern day uses, and the controversy surrounding the practice. In Part III, 1 will survey contemporary fracking cases and suggest that as a practical matter, plaintiffs will have more success in holding oil and gas companies to account when groundwater contamination is not at issue. In Part IV, I will analyze the pioneering Canadian case of Ernst v. EnCana Corp. and argue that the plaintiff, Jessica Ernst, faces a near insurmountable task in establishing the requirement of factual causation in her pending action against the EnCana Corporation. Finally, in Part V, I will argue that, because of the element of factual causation, tort law is ineffective and cannot achieve its functions (compensation, vindication, punishment, and deterrence) in hydraulic fracturing groundwater contamination cases. A strict regulatory system that imposes a presumption of liability in cases of hydraulic fracking is required.

II. HYDRAULIC FRACTURING

A. A Brief History of Hydraulic Fracturing

Hydraulic fracturing is a technique used to increase oil and gas production from underground oil or gas-bearing rock formations through the injection of high-pressure fracking fluid that fractures reservoir rock, thus releasing trapped natural gas or oil. (3) The fracturing fluid is comprised of water, chemicals, and propping agents such as sand. (4) The propping agents are used to ensure that the fractures created remain propped open after the pressurized injection of the fracturing fluid stops, thus allowing hydrocarbons (e.g., crude oil or natural gas) to flow to production wells. (5) Today, fracking is a very common well-stimulation technique. In the United States, the jurisdiction that first made use of this technology, some 80,000 wells have been drilled as of 2005, (6) and it is estimated that "over 90 percent of all oil and gas wells ... are hydraulically fractured." (7) In more appreciable terms, it is estimated that more than fifteen million Americans now live within one mile of a fracking operation. (8)

While hydraulic fracturing is a relatively novel process (having its origins in the 1948 Kansas oil fields), (9) the process of fracturing subsurface rock formations to stimulate underground resource production began as early as the late 1800s, (10) emerging shortly after the beginning of the United States oil boom. (11) Around this time, oil producers were keen to find a solution to the problem of anemic oil wells. (12) Colonel Edward Roberts, a Civil War veteran, developed what would come to be known as the 'Roberts Petroleum Torpedo': the first fracturing technology. The process at that time involved lowering an explosive device (collection of nitroglycerin-filled canisters) into the base of a well and then detonating it to fracture the rock and allow the oil to flow more easily. …

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